LRBs0419/2
RPN&JEO:kmg&mfd:km
1997 - 1998 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO 1997 ASSEMBLY BILL 688
January 28, 1998 - Offered by Representative Goetsch.
AB688-ASA1,1,11 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), 804.01 (1), 804.05 (1),
4804.06 (1) (a), 804.08 (1) (a), 804.09 (2), 804.11 (1) (a), 814.24, 814.245 (3), 814.29
5(1) (a), 814.29 (3) (b), 893.16 (1) and 893.82 (3); and to create 301.328, 302.11
6(1q), 801.02 (7) (a), (c) and (d), 802.05 (3), 804.015, 806.025, 807.04 (2), 807.15,
7809.103, 813.02 (1) (c), 813.40, 814.25, 814.29 (1m), 893.735, 893.82 (3m),
8895.45 and 895.76 of the statutes; relating to: litigation by persons
9incarcerated, imprisoned, confined or detained in a jail or prison, immunity
10from civil liability, the time period for the state to respond to an action and
11limiting access to public records.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB688-ASA1, s. 1 12Section 1. 19.35 (3) (f) of the statutes is amended to read:
AB688-ASA1,2,7
119.35 (3) (f) An authority may require prepayment by a requester of any fee or
2fees imposed under this subsection if the total amount exceeds $5. If the requester
3is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal
4correctional institution located in this state, and he or she has failed to pay any fee
5that was imposed by the authority for a request made previously by that requester,
6the authority may require prepayment both of the amount owed for the previous
7request and the amount owed for the current request.
AB688-ASA1, s. 2 8Section 2. 301.048 (3) (d) of the statutes is amended to read:
AB688-ASA1,2,139 301.048 (3) (d) A person may seek review of a final decision of the department
10of corrections, or of the division of hearings and appeals in the department of
11administration acting under s. 304.06 (3), relating to denials of eligibility for or
12placement in
sanctions, or relating to discipline or revocation under or termination
13from the intensive sanctions program only by the common law writ of certiorari.
AB688-ASA1, s. 3 14Section 3. 301.328 of the statutes is created to read:
AB688-ASA1,2,18 15301.328 Judgment for litigation loans to prisoners. (1) In this section,
16"litigation loan" means a loan made to a prisoner by the department to pay for paper,
17photocopying, postage or other expenses associated with litigation commenced by
18the prisoner.
AB688-ASA1,3,5 19(2) If a prisoner fails to repay a litigation loan to the department, the warden
20of the institution where the prisoner is incarcerated, imprisoned, confined or
21detained may submit a certification under oath to the clerk of circuit court in the
22county where the institution is located. The certification shall state the amount of
23litigation loans unpaid, the name and location of the prisoner and such other
24information as the court considers necessary. The court shall order that the amount
25certified by the warden be a judgment on behalf of the state and against the prisoner

1if the prisoner fails to submit a written objection to the court within 20 days after the
2court receives the certification from the warden. If the prisoner timely submits a
3written objection to the certification, the court shall consider the objection to be a
4complaint in a civil action and proceed under the rules of procedure under ch. 799,
5without requiring the service of a summons or the payment of filing fees.
AB688-ASA1,3,9 6(3) At the same time that the warden submits the certification to the court, the
7warden shall provide the prisoner with a copy of the certification. The warden shall
8attach to the certification provided to the prisoner a notice informing the prisoner of
9all of the following:
AB688-ASA1,3,1310 (a) That if the prisoner fails to submit a written objection to the court within
1120 days after the court receives the certification from the warden, the court shall
12order that the amount certified by the warden be a judgment on behalf of the state
13and against the prisoner.
AB688-ASA1,3,1514 (b) The name and address of the circuit court where the certification was
15submitted.
AB688-ASA1,3,1816 (c) That if the prisoner timely objects to the certification, the objection will be
17considered a complaint for purposes of the commencement of a civil suit under ch.
18799.
AB688-ASA1,3,2019 (d) That the prisoner is required to submit a copy of the objection to the warden
20at the time he or she submits the objection to the clerk of circuit court.
AB688-ASA1, s. 4 21Section 4. 302.11 (1) of the statutes is amended to read:
AB688-ASA1,4,222 302.11 (1) The warden or superintendent shall keep a record of the conduct of
23each inmate, specifying each infraction of the rules. Except as provided in subs. (1g),
24(1m), (1q), (7) and (10), each inmate is entitled to mandatory release on parole by the
25department. The mandatory release date is established at two-thirds of the

1sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting
2in fractions of a day shall be rounded in the inmate's favor to a whole day.
AB688-ASA1, s. 5 3Section 5. 302.11 (1q) of the statutes is created to read:
AB688-ASA1,4,74 302.11 (1q) (a) An inmate who files an action or special proceeding, including
5a petition for a common law writ of certiorari, to which s. 807.15 applies shall have
6his or her mandatory release date extended by the number of days specified in the
7court order prepared under s. 807.15 (3).
AB688-ASA1,4,108 (b) Upon receiving a court order issued under s. 807.15, the department shall
9recalculate the mandatory release date of the inmate to whom the order applies and
10shall inform the inmate of his or her new mandatory release date.
AB688-ASA1, s. 6 11Section 6. 302.11 (2) (c) of the statutes is amended to read:
AB688-ASA1,4,1312 302.11 (2) (c) No extension under this section subsection may require the
13inmate to serve more days in prison than provided for under the sentence.
AB688-ASA1, s. 7 14Section 7. 302.11 (7) (b) of the statutes is amended to read:
AB688-ASA1,4,2215 302.11 (7) (b) A parolee returned to prison for violation of the conditions of
16parole shall be incarcerated for the entire period of time determined by the
17department of corrections in the case of a waiver or the division of hearings and
18appeals in the department of administration in the case of a hearing under par. (a),
19unless paroled earlier under par. (c). The parolee is not subject to mandatory release
20under sub. (1) or presumptive mandatory release under sub. (1g). The period of time
21determined under par. (a) may be extended in accordance with sub. subs. (1q) and
22(2).
AB688-ASA1, s. 8 23Section 8. 302.43 of the statutes is amended to read:
AB688-ASA1,5,10 24302.43 Good time. Every inmate of a county jail is eligible to earn good time
25in the amount of one-fourth of his or her term for good behavior if sentenced to at

1least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit
2for time served prior to sentencing under s. 973.155, including good time under s.
3973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects
4or refuses to perform any duty lawfully required of him or her, may be deprived by
5the sheriff of good time under this section, except that the sheriff shall not deprive
6the inmate of more than 2 days good time for any one offense without the approval
7of the court. An inmate who files an action or special proceeding, including a petition
8for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of
9the number of days of good time specified in the court order prepared under s. 807.15
10(3).
AB688-ASA1, s. 9 11Section 9. 303.07 (3) of the statutes is amended to read:
AB688-ASA1,5,1912 303.07 (3) Each prisoner serving a sentence under this section who could have
13been sentenced to a state prison is subject to s. 302.11 (1), (1g) , (1q) and (2). Each
14prisoner serving such a sentence may be transferred to a state prison upon
15recommendation of the superintendent and approval of the department. The county
16board may, pursuant to its regulations approved by the department, extend to all
17other prisoners similar pecuniary earnings and rewards, subject to similar
18conditions and limitations as those prescribed by s. 302.12 for prisoners in the
19Wisconsin state prisons.
AB688-ASA1, s. 10 20Section 10. 304.06 (1) (b) of the statutes is amended to read:
AB688-ASA1,6,1021 304.06 (1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or
22973.0135, the parole commission may parole an inmate of the Wisconsin state
23prisons or any felon or any person serving at least one year or more in a county house
24of correction or a county reforestation camp organized under s. 303.07, when he or
25she has served 25% of the sentence imposed for the offense, or 6 months, whichever

1is greater. Except as provided in s. 939.62 (2m) or 973.014, the parole commission
2may parole an inmate serving a life term when he or she has served 20 years, as
3modified by the formula under s. 302.11 (1) and subject to extension using the
4formulas
under s. 302.11 (2) (1q) and (2), if applicable. The person serving the life
5term shall be given credit for time served prior to sentencing under s. 973.155,
6including good time under s. 973.155 (4). The secretary may grant special action
7parole releases under s. 304.02. The department or the parole commission shall not
8provide any convicted offender or other person sentenced to the department's custody
9any parole eligibility or evaluation until the person has been confined at least 60 days
10following sentencing.
AB688-ASA1, s. 11 11Section 11. 801.02 (7) of the statutes is renumbered 801.02 (7) (b) and
12amended to read:
AB688-ASA1,6,2413 801.02 (7) (b) No prisoner, as defined in s. 301.01 (2), may commence a civil
14action or special proceeding against an officer, employe or agent of the department
15of corrections in his or her official capacity or as an individual for acts or omissions
16committed while carrying out his or her duties as an officer, employe or agent or while
17acting within the scope of his or her office, employment or agency
, including a petition
18for a common law writ of certiorari, with respect to the prison or jail conditions in the
19facility in which he or she is or has been incarcerated, imprisoned or detained
until
20the person has exhausted any all available administrative remedies that the
21department of corrections has promulgated by rule or that the custodian of the
22prisoner has reduced to writing. Except for petitions for a common law writ of
23certiorari, a prisoner commencing an action or special proceeding shall first comply
24with the provisions of s. 893.80 or 893.82
.
AB688-ASA1, s. 12 25Section 12. 801.02 (7) (a), (c) and (d) of the statutes are created to read:
AB688-ASA1,7,1
1801.02 (7) (a) In this subsection:
AB688-ASA1,7,72 1. "Correctional institution" means any state or local facility that incarcerates
3or detains any adult accused of, charged with, convicted of, or sentenced for any crime
4or that incarcerates or detains any juvenile alleged to be delinquent or adjudicated
5to be delinquent on the basis of conduct that, if committed by an adult, would be a
6crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5),
7a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.
AB688-ASA1,7,108 2. "Prisoner" means any person who is incarcerated, imprisoned or otherwise
9detained in a correctional institution or who is arrested or otherwise detained by a
10law enforcement officer. "Prisoner" does not include any of the following:
AB688-ASA1,7,1111 a. A person committed under ch. 980.
AB688-ASA1,7,1312 b. A person bringing an action seeking relief from a judgment terminating
13parental rights.
AB688-ASA1,7,1614 c. A person bringing an action seeking relief from a judgment of conviction or
15a sentence of a court, including an action for an extraordinary writ or a supervisory
16writ or an action under s. 809.30, 809.40, 973.19 or 974.06.
AB688-ASA1,7,1917 3. "Prison or jail conditions" means any matter related to the conditions of
18confinement or to the effects of actions by government officers, employes or agents
19on the lives of prisoners.
AB688-ASA1,8,620 (c) At the time of filing the initial pleading to commence an action or special
21proceeding, including a petition for a common law writ of certiorari, related to prison
22or jail conditions, a prisoner shall include, as part of the initial pleading,
23documentation showing that he or she has exhausted all available administrative
24remedies. The documentation shall include copies of all of the written materials that
25he or she provided to the administrative agency as part of the administrative

1proceeding and all of the written materials the administrative agency provided to
2him or her related to that administrative proceeding. The documentation shall also
3include all written materials included as part of any administrative appeal. The
4court shall deny a prisoner's request to proceed without the prepayment of fees and
5costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the
6prisoner has failed to exhaust all available administrative remedies.
AB688-ASA1,8,167 (d) If the prisoner seeks leave to proceed without giving security for costs or
8without the payment of any service or fee under s. 814.29, the court shall dismiss any
9action or special proceeding, including a petition for a common law writ of certiorari,
10commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while
11he or she was incarcerated, imprisoned, confined or detained in a jail or prison,
12brought an appeal, writ of error, action or special proceeding, including a petition for
13a common law writ of certiorari, that was dismissed by a state or federal court for any
14of the reasons listed in s. 802.05 (3) (b) 1. to 4. The court may permit a prisoner to
15commence the action or special proceeding, notwithstanding this paragraph, if the
16court determines that the prisoner is in imminent danger of serious physical injury.
AB688-ASA1, s. 13 17Section 13. 801.09 (2) (a) of the statutes is amended to read:
AB688-ASA1,8,2318 801.09 (2) (a) Within 20 days, or within 45 days if the defendant is the state
19or an officer, agent, employe or agency of the state in an action or special proceeding
20brought within the purview of s. 893.82 or 895.46
, exclusive of the day of service, after
21the summons has been served personally upon the defendant or served by
22substitution personally upon another authorized to accept service of the summons
23for the defendant; or
AB688-ASA1, s. 14 24Section 14. 802.05 (3) of the statutes is created to read:
AB688-ASA1,9,3
1802.05 (3) (a) A court shall review the initial pleading as soon as practicable
2after the action or special proceeding is filed with the court if the action or special
3proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.
AB688-ASA1,9,64 (b) The court may dismiss the action or special proceeding under par. (a)
5without requiring the defendant to answer the pleading if the court determines that
6the action or special proceeding meets any of the following conditions:
AB688-ASA1,9,77 1. Is frivolous, as determined under s. 814.025 (3).
AB688-ASA1,9,98 2. Is used for any improper purpose, such as to harass, to cause unnecessary
9delay or to needlessly increase the cost of litigation.
AB688-ASA1,9,1010 3. Seeks monetary damages from a defendant who is immune from such relief.
AB688-ASA1,9,1111 4. Fails to state a claim upon which relief may be granted.
AB688-ASA1,9,1512 (c) If a court dismisses an action or special proceeding under par. (b), the court
13shall notify the department of justice or the attorney representing the political
14subdivision, as appropriate, of the dismissal by a procedure developed by the director
15of state courts in cooperation with the department of justice.
AB688-ASA1,9,1816 (d) The dismissal of an action or special proceeding under par. (b) does not
17relieve the prisoner from paying the full filing fee related to that action or special
18proceeding.
AB688-ASA1, s. 15 19Section 15. 802.06 (1) of the statutes is amended to read:
AB688-ASA1,9,2520 802.06 (1) When presented. A Except when a court dismisses an action or
21special proceeding under s. 802.05 (3), a
defendant shall serve an answer within 20
22days after the service of the complaint upon the defendant. If a guardian ad litem
23is appointed for a defendant, the guardian ad litem shall have 20 days after
24appointment to serve the answer. A party served with a pleading stating a
25cross-claim against the party shall serve an answer thereto within 20 days after the

1service upon the party. The plaintiff shall serve a reply to a counterclaim in the
2answer within 20 days after service of the answer. The state or an agency of the state
3or an officer, employe or agent of the state in an action brought within the purview
4of s. 893.82 or 895.46
shall serve an answer to the complaint or to a cross-claim or
5a reply to a counterclaim within 45 days after service of the pleading in which the
6claim is asserted. If any pleading is ordered by the court, it shall be served within
720 days after service of the order, unless the order otherwise directs. The service of
8a motion permitted under sub. (2) alters these periods of time as follows, unless a
9different time is fixed by order of the court: if the court denies the motion or postpones
10its disposition until the trial on the merits, the responsive pleading shall be served
11within 10 days after notice of the court's action; or if the court grants a motion for a
12more definite statement, the responsive pleading shall be served within 10 days after
13the service of the more definite statement.
AB688-ASA1, s. 16 14Section 16. 804.01 (1) of the statutes is amended to read:
AB688-ASA1,10,2115 804.01 (1) Discovery methods. Parties may obtain discovery by one or more
16of the following methods: depositions upon oral examination or written questions;
17written interrogatories; production of documents or things or permission to enter
18upon land or other property, for inspection and other purposes; physical and mental
19examinations; and requests for admission. Unless the court orders otherwise under
20sub. (3), and except as provided in s. 804.015, the frequency of use of these methods
21is not limited.
AB688-ASA1, s. 17 22Section 17. 804.015 of the statutes is created to read:
AB688-ASA1,10,24 23804.015 Limits on discovery by prisoners. (1) In this section,"prisoner"
24has the meaning given s. 801.02 (7) (a) 2.
AB688-ASA1,11,7
1(2) Unless ordered by the court, a prisoner in an action or special proceeding
2may not obtain discovery before the court receives a copy of the answer or other
3responsive pleading in the action commenced by the prisoner. If a defendant submits
4a motion to dismiss or a motion for summary judgment, no discovery may be obtained
5until the court decides that the prisoner has a reasonable opportunity to prevail on
6the merits, or until the court decides the merits of the motion, unless the court orders
7a party to submit to discovery.
AB688-ASA1,11,15 8(3) If a court allows a prisoner to obtain discovery under sub. (2) before the court
9decides that the prisoner has a reasonable opportunity to prevail on the merits,
10receives a copy of the answer or other responsive pleading in the action, or decides
11the merits of a motion to dismiss or a motion for summary judgment, the court order
12shall be narrowly tailored to limit the discovery to allow only discovery that is
13essential to enable the prisoner to obtain the evidence necessary to his or her case.
14The court shall limit the discovery so as to provide a minimal intrusion in the
15activities of any person subject to discovery under this subsection.
Loading...
Loading...