Amendment ASA1-AB548

CORRECTED COPY

LRBs0209/1

MS/TD/FK/CH/MJ:ahe&amn

2017 - 2018 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 548

December 28, 2017 - Offered by Representatives Kooyenga and Hebl.

AB548-ASA1,1,7 An Act to renumber 893.57; to renumber and amend 775.05 (2); to amend 20.505 (4) (d), 40.51 (1), 227.03 (5), 775.05 (3) and (4) and 775.05 (5); and to create 20.515 (1) (ds), 20.515 (1) (g), 40.516, 71.05 (6) (b) 54., 227.43 (1) (bw), 227.43 (3) (f), 301.051, 775.05 (2) (b) and (c) and (2m), 775.05 (4c), 775.05 (4d), 775.05 (4g) and (4h), 775.05 (4m) and (4r), 808.085, 893.57 (2), 977.05 (4) (jr) and 977.05 (4) (jw) of the statutes; relating to: claims by and treatment of wrongfully imprisoned persons and making appropriations.

Analysis by the Legislative Reference Bureau

This substitute amendment does the following: 1) makes changes to the requirements for claims for state compensation by wrongfully imprisoned persons; and 2) provides health care coverage and other assistance for such persons. Except as noted below, the substitute amendment initially applies with respect to claims filed by persons who are released on or after March 13, 1980, from imprisonment for crimes of which they claim to be innocent.

Requirements for claims. Currently, the state claims board is directed to hear petitions for compensation by persons who are released from imprisonment for crimes of which they claim to be innocent. The board must find either that the evidence is clear and convincing that the petitioner was innocent of the crime for which he or she was imprisoned or that the evidence is not clear and convincing that he or she was innocent. If the board finds that the petitioner was innocent and that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation, the board must award the petitioner compensation not to exceed $25,000 total nor more than $5,000 for each year of imprisonment. This amount includes any expenses for attorney fees, costs, and disbursements incurred by the petitioner. Any award is paid from state general purpose revenues. If the board determines that it is not able to award an adequate compensation, the board must submit a report to the legislature specifying the amount that it considers to be adequate.

This substitute amendment provides that when the claims board receives a claim for wrongful imprisonment filed by a petitioner who has been released from imprisonment and who claims to be innocent of the crime for which he or she was imprisoned, the board must refer the petition to the Division of Hearings and Appeals in the Department of Administration. The substitute amendment then allows either DOA or the office of the prosecutor who prosecuted the petitioner to file a written request with the claims board for a hearing within 30 days after the original petition is filed with the board. If a timely request for a hearing is filed, or if the division concludes that it cannot determine the petitioner's eligibility for compensation without a hearing, the division must hold a hearing within 60 days after the petition is filed. If a timely request for a hearing is not filed and the division is able to determine that the petitioner is eligible for compensation without a hearing, the division must decide the matter without a hearing, except that the division must afford a petitioner an opportunity for a hearing before denying compensation to the petitioner. If a hearing is held, the substitute amendment allows the petitioner to be represented by a public defender. If a hearing is held, the division appoints a hearing examiner to hear the petition and the state is represented by the office of the prosecutor who prosecuted the petitioner. If no hearing is held, the division decides the matter without a hearing.

The hearing examiner makes findings and issues a decision concerning whether the petitioner is entitled to compensation. Under the substitute amendment, the findings must be based upon the preponderance of evidence (a lesser evidentiary standard than clear and convincing evidence). The petitioner need not show that he or she did not by his or her act or failure to act contribute to bring about the conviction and imprisonment for which he or she seeks compensation.

If the hearing examiner's finding is in the affirmative, the examiner must transmit its findings to the claims board, which shall award compensation to the petitioner in an amount that the board considers to be adequate and the board must pay that amount to the petitioner. Under the substitute amendment, the amount of compensation is fixed at a rate of $50,000 per year, prorated daily, with a $1,000,000 limit on the total amount of an award. In addition, subject to the $1,000,000 limit, each award must include reimbursement for reasonable, actual attorney fees, together with all costs and disbursements incurred by the petitioner in his or her defense, postconviction, and compensation proceedings and all fees, surcharges, and restitution paid by the petitioner as a result of his or her arrest and imprisonment. The $50,000 annual rate is subject to annual adjustments based on changes in the cost of living. The substitute amendment requires the board to make, every five years, a recommendation to the legislature as to whether the $1,000,000 limit should be changed.

The substitute amendment provides that no person may file a claim for wrongful imprisonment, or be paid an award for wrongful imprisonment, as a result of a conviction resulting in imprisonment for a crime if the imprisoned person is also imprisoned for a conviction for a felony arising from the same course of conduct that resulted in conviction for the crime of which the person claims to be innocent if the person does not claim to be innocent of that felony or if the imprisoned person is convicted of a violent crime, specified in this substitute amendment, after his or her release from imprisonment.

The substitute amendment also provides that, with certain exceptions, a surviving spouse or domestic partner, child, parent, or sibling of a person who is entitled to compensation for wrongful imprisonment but who does not receive payment of an award may, within one year of the death of that person, file or pursue on behalf of the deceased person a claim for wrongful imprisonment. Under the substitute amendment, any payment that would have been payable to the deceased person then becomes payable to the individual who files or pursues the claim, except that if that person is entitled only under the law governing inheritances to inherit a portion of the estate of a deceased person, the individual may receive only the same portion of the payment. Any compensation is independent of any rights that a claimant or any other person may have to inherit assets under any will of the decedent.

The substitute amendment also creates requirements that apply if a person who petitions for compensation obtains any settlement, judgment, or award against a third party in a federal or state action for damages related to wrongful imprisonment for the crime that is the subject of the petition. If a person obtains such a settlement, judgment, or award in such an action before the claims board pays a claim, the claims board must subtract the amount of the judgment, settlement, or award from the compensation. The substitute amendment also provides that for any petition filed on or after the effective date of the substitute amendment, the petitioner automatically assigns to the claims board the petitioner's right to any settlement, judgment, or award obtained against a third party in such an action. The substitute amendment specifies that the assignment is a condition of eligibility to receive compensation from the claims board. Also, the assignment is considered to be a statutory lien on the settlement, judgment, or award. The amount of the lien is equal to the amount of the settlement, judgment, or award, or the amount of compensation awarded by the claims board, whichever is less.

The substitute amendment also provides that if a person who is awarded compensation owes money for outstanding restitution, court fees, and fines (collectively deductions) related to any conviction that remains in place and is not subject to a finding of innocence, the claims board must withhold and deduct from the compensation award any such money that is owed. The substitute amendment requires the prosecutor of such convictions to provide the claims board with an accounting of all unpaid deductions, and the claims board must distribute the deductions to the person to whom they are owed.

This substitute amendment also extends the statute of limitations for a civil claim for damages brought by a person who was injured because of an intentional tort that resulted in an earlier criminal conviction of the person who has received compensation for wrongful imprisonment for a later crime. Under current law, an injured person must bring a claim for damages due to an intentional tort within three years after the cause of action accrues or be barred. Under the substitute amendment, an injured person may bring a claim within three years, or within one year after a defendant receives compensation for wrongful imprisonment, whichever is later. If the injured person brings his or her claim more than three years after the cause of action accrues but within one year after the defendant receives compensation for wrongful imprisonment, the damages awarded due to the tort may not exceed 50 percent of the total compensation received for wrongful imprisonment.

In addition, the substitute amendment exempts from taxation the payments that an individual, or his or her estate, receives from the claims board or from the state legislature as a result of claims board action, or from the state as payment for the individual's health insurance premiums.

Health care coverage and other assistance. Under current law, the Group Insurance Board, attached to the Department of Employee Trust Funds, contracts on behalf of the state for the purpose of providing health care coverage to state employees. This substitute amendment permits individuals who receive compensation from the state for wrongful imprisonment and who are not eligible to obtain health care coverage from an employer to elect, for up to five years, health care coverage under plans offered by the Group Insurance Board to state employees beginning on January 1, 2019. Under the substitute amendment, these individuals would be required to pay the same health insurance premium amounts that state employees are required to pay, with the balance of the premium cost paid by the state. During the time before January 1, 2019, this substitute amendment makes these individuals eligible for health care benefits through the Medical Assistance program BadgerCare Plus, if the federal government does not disapprove of the Department of Health Services providing Medical Assistance to these individuals.

Under the substitute amendment, if a person's conviction for a crime is reversed, set aside, or vacated on grounds consistent with the person's innocence, and the person is ordered released from prison by a trial court, the court must grant the person, upon request, temporary financial assistance, transition assistance from the Department of Corrections and local aid agencies, and sealing of all records related to his or her conviction. If the person pursues a successful petition for wrongful imprisonment, any temporary financial assistance he or she received upon release from prison is subtracted from any compensation he or she receives for wrongful imprisonment.

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

AB548-ASA1,1 Section 1 . 20.505 (4) (d) of the statutes is amended to read:

AB548-ASA1,5,6 20.505 (4) (d) Claims awards. A sum sufficient for payment of awards made by the claims board or department of administration under ss. 16.007, 775.05 (4), 775.06 and 775.11, awards of financial assistance under s. 808.085, and awards made by an act of the legislature arising from a claim filed with the claims board which are not directed by law or under s. 16.007 (6m) to be paid from another appropriation.

AB548-ASA1,2 Section 2 . 20.515 (1) (ds) of the statutes is created to read:

AB548-ASA1,5,11 20.515 (1) (ds) Payment of health insurance premiums for individuals who receive compensation for wrongful imprisonment. A sum sufficient to pay the state's share of premium costs for health care benefits and the cost of administering the benefits for individuals under s. 40.516.

AB548-ASA1,3 Section 3 . 20.515 (1) (g) of the statutes is created to read:

AB548-ASA1,5,17 20.515 (1) (g) Benefit and coverage payments; health care coverage for individuals who receive compensation for wrongful imprisonment. All moneys received from individuals under s. 40.516 who elect to be included in a health care coverage plan under s. 40.51 (6), for the payment of benefits and the cost of administering benefits for the individuals.

AB548-ASA1,4 Section 4 . 40.51 (1) of the statutes is amended to read:

AB548-ASA1,6,2 40.51 (1) The procedures and provisions pertaining to enrollment, premium transmitted and coverage of eligible employees and individuals eligible for health care coverage under s. 40.516 for health care benefits shall be established by contract or rule except as otherwise specifically provided by this chapter.

AB548-ASA1,5 Section 5 . 40.516 of the statutes is created to read:

AB548-ASA1,6,11 40.516 Health care coverage for individuals who receive compensation for wrongful imprisonment. (1) Beginning on January 1, 2019, any individual who receives compensation under s. 775.05 after the effective date of this subsection .... [LRB inserts date], may elect coverage under any health care coverage plan offered under s. 40.51 (6) for a period equal to the time he or she was imprisoned, but not to exceed 5 years. An individual who is eligible to obtain health care coverage offered by his or her employer or by the employer of his or her spouse may not elect or continue coverage under this subsection.

AB548-ASA1,6,18 (2) The individual and the state shall jointly pay the full premium cost of health care coverage and the cost of administering the benefits under sub. (1). The amount that the individual must pay in health insurance premiums shall equal the amount required to be paid by state employees, as determined by the administrator of the division of personnel management in the department of administration under s. 40.05 (4) (ah). The remainder of the premium cost for health care coverage for these individuals shall be paid from the appropriation account under s. 20.515 (1) (ds).

AB548-ASA1,6 Section 6 . 71.05 (6) (b) 54. of the statutes is created to read:

AB548-ASA1,7,2 71.05 (6) (b) 54. Any amount received by an individual, or the individual's estate, from the claims board under s. 775.05 (4), from the legislature under the process described in s. 775.05 (4), from the state as a result of the state's payment of an individual's premium costs under s. 40.516 (2) to the extent that the amount is recognized by the individual as income, or from a financial assistance award granted under s. 808.085, in the taxable year that relates to the year in which the payment is received.

AB548-ASA1,7 Section 7. 227.03 (5) of the statutes is amended to read:

AB548-ASA1,7,7 227.03 (5) This chapter does not apply to proceedings of the claims board, except as provided in ss. 775.05 (5), 775.06 (7) and 775.11 (2), and except that proceedings under s. 775.05 are subject to this chapter, unless otherwise provided in s. 775.05.

AB548-ASA1,8 Section 8. 227.43 (1) (bw) of the statutes is created to read:

AB548-ASA1,7,10 227.43 (1) (bw) Assign a hearing examiner to preside over each hearing conducted under s. 775.05.

AB548-ASA1,9 Section 9 . 227.43 (3) (f) of the statutes is created to read:

AB548-ASA1,7,16 227.43 (3) (f) The administrator of the division of hearings and appeals may set the fees to be charged for any services rendered to the claims board by a hearing examiner under this section. The fee shall cover the total cost of the services. In no case may a fee that is set under this paragraph be imposed on, or passed down to, a petitioner described under s. 775.05 (2) (a).

AB548-ASA1,10 Section 10 . 301.051 of the statutes is created to read:

AB548-ASA1,7,21 301.051 Wrongful imprisonment; transition plan. Not more than 5 days after a court issues an order under s. 808.085 (1) (a) for a plan requested by an inmate, the department shall create a transition to release plan for the inmate. The plan shall do all of the following:

AB548-ASA1,7,25 (1) Provide the inmate with a written list of community resources available to the inmate upon his or her release from prison, including temporary housing and emergency shelters, food banks, education and job assistance, and health care services in the county into which the inmate will be released.

AB548-ASA1,8,3 (2) Provide the inmate with an individual counseling session with a person trained by the department or the county into which the inmate will be released to assist inmates in the transition to release from prison.

AB548-ASA1,8,6 (3) Schedule an appointment, set for not later than 2 weeks after the inmate's date of release, for the inmate to meet with a social worker or aid program administrator for the county into which the inmate will be released.

AB548-ASA1,11 Section 11. 775.05 (2) of the statutes is renumbered 775.05 (2) (a) and amended to read:

AB548-ASA1,8,20 775.05 (2) (a) Any Except as provided in pars. (b) and (c), any person who is imprisoned as the result of his or her conviction for a crime in any court of this state, of which crime the person claims to be innocent, and who is released from imprisonment for that crime whose conviction has been vacated and who has been subsequently acquitted, or whose conviction has been vacated and the charges have been dismissed, or who has received a pardon on the basis of innocence, any of which occurs after March 13, 1980, may petition the claims board for compensation for such imprisonment. Upon Within 5 days after receipt of the petition, the claims board department of administration shall transmit a copy thereof to the prosecutor who prosecuted the petitioner and the judge who sentenced the petitioner for the conviction which is the subject of the claim, or their successors in office, for the information of these persons.

AB548-ASA1,12 Section 12 . 775.05 (2) (b) and (c) and (2m) of the statutes are created to read: