SB383: Bill Text

LRB-1038/4

RPN&PJH&CMH:wlj:rs

2009 - 2010 LEGISLATURE

2009 Senate BILL 383

November 3, 2009 - Introduced by Senators Taylor, Risser, Erpenbach and Wirch, cosponsored by Representatives Seidel, Parisi, Pope-Roberts, Turner, Tauchen, Pasch, Staskunas, Lothian, Berceau, Danou and Townsend. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB383,2,14 An Act to repeal 755.09 (3), 800.01 (1) (b), 800.01 (1) (c), 800.02 (2) (a) 8m., 800.02 (3), 800.03, 800.04 (title), 800.04 (1) (a) to (c), 800.04 (1) (e), 800.04 (1) (f), 800.04 (3), 800.04 (4), 800.04 (5), 800.05 (2), 800.09 (1) (c) and 800.09 (2); to renumber 800.02 (2) (a) 1., 800.02 (2) (a) 2., 800.02 (2) (a) 5. and 6., 800.02 (2) (a) 8., 800.02 (2) (a) 9., 800.02 (2) (a) 10., 800.04 (2) (a) and 800.05 (4); to renumber and amend 755.001, 755.01 (5), 800.02 (2) (a) (intro.), 800.02 (2) (a) 3., 800.02 (2) (a) 4., 800.02 (2) (a) 7., 800.04 (1) (d), 800.04 (2) (b), 800.04 (2) (c), 800.04 (2m), 800.09 (1) (intro.), 800.09 (1) (a) and 800.09 (1) (b); to consolidate, renumber and amend 800.01 (1) (intro.) and (a); to amend 165.83 (2) (e), 177.13, 302.373 (1) (b), 302.373 (2) (a), 343.30 (5), 345.43 (1), 345.47 (1) (a), 345.47 (1m), 565.30 (5r) (a), 565.30 (5r) (b), 755.01 (1), 755.01 (2), 755.01 (4), 755.02, 755.03 (1), 755.03 (2), 755.04, 755.045 (1) (a), 755.045 (2), 755.05, 755.06, 755.09 (1), 755.09 (2), 755.10, 755.11, 755.15, 755.16, 755.17 (title), 755.17 (1), 755.17 (2), 755.18 (title), 755.18 (1), 755.19 (2) (a), 755.21 (intro.), 778.30 (1) (intro.), 800.02 (1), 800.02 (2) (am), 800.02 (2) (b), 800.025, 800.05 (title), 800.05 (1), 800.05 (3), 800.06 (2), 800.06 (3), 800.065 (title), 800.065 (1), 800.065 (3), 800.065 (4), 800.07, 800.08 (1), 800.08 (2) (a), 800.08 (2) (b), 800.08 (3), 800.08 (4), 800.09 (title), 800.093 (1) (intro.), 800.093 (1) (a), 800.093 (2), 800.093 (3) (b) (intro.), 800.093 (4) (intro.), 800.093 (5) (intro.), 800.10 (1), 800.10 (2), 800.11 (1) (intro.), 800.11 (1) (a), 800.11 (1) (g), 800.11 (1) (q), 800.11 (2), 800.11 (3) (c), 800.11 (4), 800.13 (1), 800.14 (1), 800.14 (2), 800.14 (3), 800.14 (4), 800.14 (5), 800.14 (6) and 938.237 (2); to repeal and recreate 343.30 (5), 800.001, 800.01 (2), 800.02 (2) (title), 800.06 (1), 800.095, 800.115 and 800.12; and to create 111.70 (4) (mc) 4., 755.001 (2), 755.001 (3), 755.17 (1m), 755.17 (3), 755.17 (4), 800.01 (2m), 800.02 (2) (ag) 1m., 800.02 (2) (ag) 9m., 800.035, 800.037, 800.045, 800.05 (4) (a), 800.05 (5), 800.085 and 800.09 (1b) (b), (c), (d) and (e) of the statutes; relating to: municipal court elections, judges, and procedure, and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes numerous changes regarding municipal court administration, judges, and procedures. Municipal courts operate in the cities, villages, and towns of this state to enforce municipal ordinances. Generally, the procedures in municipal court are less stringent than in circuit court, and violations of ordinances may result in a civil forfeiture. The bill makes all of the following changes:

1. Makes municipal courts subject to the authority of the supreme court, through the chief judge of the judicial administrative district.

2. Requires, in addition to current law that requires only the adoption of an ordinance for a court to exist, that the court must submit written notice of the ordinance to the director of state courts and receive certification from the chief judge of the judicial administrative district.

3. Provides that the municipal court budget or line item be separate from the budget of all other municipal departments.

4. Allows a municipal court to appoint a social worker to assist the court in determining if a defendant lacks substantial mental capacity to understand the proceeding or to assist in his or her defense. Currently, the court may appoint a guardian ad litem in those situations. The new provision gives the court an alternative choice of whom to appoint, and further clarifies that a determination of incompetency results in the suspension of the proceedings.

5. Requires municipal judges to be elected for four-year terms, rather than the two- to four-year terms as provided by ordinance under current law.

6. Gives municipal judges statewide jurisdiction.

7. Requires the municipality to provide the judge with an office or appropriate work space and removes the restriction on a municipal judge from having an office with a law partner.

8. Requires the municipality to authorize at least one clerk position for the municipal court and gives the municipal judge authority over the hiring, work responsibilities, and firing of court personnel. The bill provides that the judge's supervisory authority is a prohibited subject of collective bargaining for court personnel who are not employed by a city of the first class and requires the clerk to attend continuing education programs approved by the supreme court.

9. Requires the municipal judge to store all municipal court records in an appropriate facility designated by the municipality.

10. Requires a municipal judge to wear a black robe while presiding in a municipal court and prohibits the clerk from wearing anything that implies or indicates he or she is a law enforcement employee.

11. Prohibits the municipality from locating the municipal court or the court personnel within the municipal police department and gives the judge the authority to establish court hours, while requiring the municipality to provide an adequate courtroom for the municipal court.

12. Requires each municipal court to have a telephone number or extension separate from any other governmental department.

13. Allows service of the summons and complaint by first class mail, in addition to the current methods of service that are identical to those permitted in circuit court, but does not allow the suspension of a person's operating privilege or issuance of a warrant if the defendant was served by mail.

14. Requires the law enforcement officer or municipal employee who serves a summons and complaint to indicate the method of service on the documents filed with the court.

15. Clarifies that a citation or complaint may be used to start the municipal court action, and the action is commenced when the citation or complaint is filed with the court.

16. Includes in the citation or complaint a statement as to whether the judge mandates that the person make a personal appearance.

17. Includes in the citation or complaint the identification of a permit issued to the defendant or the license number of the defendant, if appropriate.

18. Allows a citation or complaint to be amended after the initial appearance of the defendant only at the discretion of the court after a hearing or at the trial by the court to conform to the evidence.

19. Requires the service of a copy of an amended complaint when amendment is made before an initial appearance.

20. Clarifies that a defendant may appear in municipal court in person or by submitting a written response to the citation or complaint, except when the court requires the defendant to appear in person.

21. Limits the time that a defendant may be detained in jail to 48 hours if the defendant failed to make an initial appearance or make a deposit, if the court issued a warrant to bring the defendant before the court.

22. Provides that the municipal court may schedule a pretrial conference in those cases where a trial has been requested, and if the parties come to an agreement at the conference, the court may approve the agreement or disapprove the agreement and proceed to trial.

23. Clarifies that when a transfer of a case is made because of a request for the substitution of a judge, the parties, including the prosecutor, remain the same, and the amount of the judgment, if any, is paid to the original municipal court from which the case was transferred.

24. Provides that if a municipal judge disqualifies himself or herself, the case shall be transferred to another judge in the same manner as a judge substitution transfer.

25. Allows a municipal judge who is to be temporarily absent, sick, or disabled, subject to the order of the chief judge of the judicial administrative district, to designate another municipal judge within the state to perform his or her duties. This provision replaces language that allowed the municipal judge to deliver the case to the circuit court for disposition. If the municipal judge was in the first judicial administrative district, currently the municipal judge could also designate, for a period of not more than 30 days, a municipal judge from within the state to perform his or her duties. If the municipal judge was from another judicial administrative district, current law allows the municipal judge to designate, for a period of not more than 30 days, a municipal judge from within that district to perform his or her duties.

26. Allows a chief judge of the judicial administrative district to designate any municipal judge within the state temporarily to perform the duties of municipal judge when there is a permanent vacancy in the office of municipal judge.

27. Requires the municipality to provide a prosecutor for municipal court cases and allows telephonic or audiovisual testimony at any proceeding.

28. Allows a municipal court to order community service work in lieu of restitution without needing the defendant's agreement but still needing the agreement of the person to whom the restitution is owed and the agreement of the organization where the community service work would occur.

29. Allows the municipal court to order a defendant to pay restitution for any nontraffic ordinance violation or for any drunk driving ordinance violation.

30. Clarifies that the municipal court may order the suspension of a defendant's operating privilege if the violation was related to the operation of a motor vehicle, which includes nonmoving traffic offenses, or if the judgment is ordered under the juvenile justice code. The bill gives a credit of not less than $50 for each day of imprisonment.

31. Provides that a municipal court may order that a defendant be imprisoned for up to 90 days for failure to pay the amount of the judgment only if the defendant has the ability to pay the judgment, has failed to perform community service, has failed to attend a hearing to determine if he or she is indigent, or has failed to complete a drug assessment of treatment program.

32. Allows the municipal court to order the assignment of up to 25 percent of the defendant's income, including lottery winning, for the payment of the judgment and provides procedural safeguards.

33. Changes the time frame for the court to pay any money the court receives to the municipal treasurer from 7 days to 30 days.

34. Removes the requirement that the transcript of a municipal court judgment include the vocation of the defendant.

35. Allows the reopening of a judgment at any time by either party under some of the specified conditions used in circuit court, rather than by only the defendant, and allows reopening a judgment within six months in certain situations.

36. Requires the court to reopen a default judgment on the motion of the defendant if the judgment was based on service by mail, while prohibiting any appeal of a default judgment.

37. Specifies that contempt of court involves intentional acts in the presence of the court that interfere with the proceedings or administration of justice or that impair the respect due to the court, or refusal of a witness to appear without reasonable excuse.

38. Increases the maximum penalty for contempt of court from a $50 forfeiture to a $200 forfeiture, allows imprisonment of up to 7 days, and provides that the penalty be imposed immediately after the contempt occurs only to preserve order in the court or protect the authority of the court and only after the person who committed the contempt is allowed to address the court.

39. Allows the municipal court to issue a warrant to bring a witness before the court for the contempt of court for failing to appear, to order the witness to testify, and to order the witness to pay the cost of apprehending him or her, plus any ordered forfeiture for the contempt.

40. Removes the requirement that a defendant execute a bond for payment of the judgment as a requirement for the appeal of a municipal court judgment and instead allows the municipal judge to determine if the defendant must execute a bond.

41. Clarifies that an appeal of a municipal court decision stays both the execution of the judgment and the enforcement of any order issued by the municipal court.

42. Provides that an appeal from a municipal court judgment where a trial has been held in the municipal court shall be on the record unless a party files a timely notice for a new trial. If a jury is requested, the bill provides that it be a six-person jury.

43. When an appeal has been filed in a case in which testimony has been recorded, requires the court to order that a transcript of the electronic recording be prepared and certified, at the expense of the requester.

44. Clarifies that if an appeal is taken and the appellate court orders the defendant to pay a forfeiture, costs, fees, or surcharges, those payments are made to the municipal court.

For further information see the 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:

SB383, s. 1 Section 1. 111.70 (4) (mc) 4. of the statutes is created to read:

SB383,6,4 111.70 (4) (mc) 4. The judge's authority over the supervisory tasks provided in s. 755.10, if the municipal employee is a clerk who is not an employee of a city of the first class.

SB383, s. 2 Section 2. 165.83 (2) (e) of the statutes is amended to read:

SB383,6,12 165.83 (2) (e) Obtain and file a copy or detailed description of each arrest warrant issued in this state for the offenses under par. (a) or s. 800.03 (4) 346.63 (1) or (5) but not served because the whereabouts of the person named on the warrant is unknown or because that person has left the state. All available identifying data shall be obtained with the copy of the warrant, including any information indicating that the person named on the warrant may be armed, dangerous or possessed of suicidal tendencies.

SB383, s. 3 Section 3. 177.13 of the statutes is amended to read:

SB383,6,19 177.13 Property held by courts and public agencies. Except as provided in ss. 40.08 (8), 800.095 (7m) (8), 852.01 (3), 863.37 (2) and 863.39, intangible property held for the owner by a court, state or other government, governmental subdivision or agency, public corporation or public authority that remains unclaimed by the owner for more than one year after it became payable or distributable is presumed abandoned.

SB383, s. 4 Section 4. 302.373 (1) (b) of the statutes is amended to read:

SB383,7,3 302.373 (1) (b) "Prisoner" means a person who is incarcerated in a jail by court order under s. 800.095 (4) (b) 1 (1) (b).

SB383, s. 5 Section 5. 302.373 (2) (a) of the statutes is amended to read:

SB383,7,7 302.373 (2) (a) Except as provided in par. (b), a city, village, or town may seek reimbursement from the prisoner for the amount paid to a county under s. 800.095 (6) (1) (d) for the expenses incurred by the county to incarcerate the prisoner.

SB383, s. 6 Section 6. 343.30 (5) of the statutes is amended to read:

SB383,7,18 343.30 (5) No court may suspend or revoke an operating privilege except as authorized by this chapter or ch. 345, 351 or 938 or s. 767.73, 800.09 (1) (c), 800.095 (4) (b) 4. (1) (a), 943.21 (3m), or 961.50. When a court revokes, suspends or restricts a juvenile's operating privilege under ch. 938, the department of transportation shall not disclose information concerning or relating to the revocation, suspension or restriction to any person other than a court, district attorney, county corporation counsel, city, village or town attorney, law enforcement agency, or the minor whose operating privilege is revoked, suspended or restricted, or his or her parent or guardian. Persons entitled to receive this information shall not disclose the information to other persons or agencies.

SB383, s. 7 Section 7. 343.30 (5) of the statutes, as affected by 2007 Wisconsin Act 20 and 2009 Wisconsin Act .... (this act) is repealed and recreated to read:

SB383,8,5 343.30 (5) No court may suspend or revoke an operating privilege except as authorized by this chapter or ch. 345, 351, or 938 or s. 767.73, 800.095 (1) (a), 943.21 (3m), or 961.50. When a court revokes, suspends, or restricts a juvenile's operating privilege under ch. 938, the department of transportation shall not disclose information concerning or relating to the revocation, suspension, or restriction to any person other than a court, district attorney, county corporation counsel, city, village, or town attorney, law enforcement agency, driver licensing agency of another jurisdiction, or the minor whose operating privilege is revoked, suspended, or restricted, or his or her parent or guardian. Persons entitled to receive this information shall not disclose the information to other persons or agencies.

SB383, s. 8 Section 8. 345.43 (1) of the statutes is amended to read:

SB383,8,12 345.43 (1) If a case has been transferred under s. 800.04 (1) (d) 800.035 (5) (c), or if in circuit court either party files a written demand for a jury trial within 10 days after the defendant enters a plea of not guilty under s. 345.34 and immediately pays the fee prescribed in s. 814.61 (4), the court shall place the case on the jury calendar of the circuit court. The number of jurors shall be 6. If no party demands a trial by jury, the right to trial by jury is permanently waived.

SB383, s. 9 Section 9. 345.47 (1) (a) of the statutes is amended to read:

SB383,8,16 345.47 (1) (a) That, subject to s. 800.095 (8) (1) (b), the defendant be imprisoned for a time specified by the court until the judgment is paid, but not to exceed 90 days; or

SB383, s. 10 Section 10. 345.47 (1m) of the statutes is amended to read:

SB383,8,22 345.47 (1m) If the action is in municipal court, the court shall determine, at the time of entering judgment under sub. (1), whether incarceration may be ordered for noncompliance with a judgment or order under this section. If incarceration may be ordered because of the defendant's subsequent noncompliance with the judgment, the provisions of s. 800.095 (1) to (3) and (4) (a) (b) apply.

SB383, s. 11 Section 11. 565.30 (5r) (a) of the statutes is amended to read:

SB383,9,2 565.30 (5r) (a) Annually, the administrator shall provide each municipal court and clerk of circuit court in the state with a list of the winners or assignees of a lottery prize that is payable in installments. The list shall include each winner or assignee since the date of the previous list.

SB383, s. 12 Section 12. 565.30 (5r) (b) of the statutes is amended to read:

SB383,9,21 565.30 (5r) (b) Subject to par. (c), if the administrator receives a notice under s. 778.30 (2) (a), 800.09 (1) (c), or 973.05 (5) (a) or 778.30 (2) (a) of the assignment of lottery prizes under s. 778.30 (1) (c), 800.09 (1) (c), or 973.05 (4) (c) or 778.30 (1) (c) and determines that the person subject to the assignment is a winner or assignee of a lottery prize that is payable in installments, the administrator shall withhold the amount of the judgment that is the basis of the assignment from the next installment payment. The administrator shall submit the withheld amount to the court that issued the assignment. At the time of the submittal, the administrator shall charge the administrative expenses related to that withholding and submittal to the winner or assignee of the lottery prize and withhold those expenses from the balance of the installment payment. The administrator shall notify the winner or assignee of the reason that the amount is withheld from the installment payment. If the initial installment payment is insufficient to pay the judgment and administrative expenses, the administrator shall withhold and submit to the court an amount from any additional installment payments until the judgment and administrative expenses are paid in full and the assignment is no longer in effect. The administrative expenses received by the department shall be credited to the appropriation under s. 20.566 (1) (h).