Amendment ASA1-AB688

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1997 - 1998 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 1997 ASSEMBLY BILL 688

January 28, 1998 - Offered by Representative Goetsch.

AB688-ASA1,1,11 An Act to repeal 808.04 (5); to renumber and amend 801.02 (7) and 807.04; to amend 19.35 (3) (f), 301.048 (3) (d), 302.11 (1), 302.11 (2) (c), 302.11 (7) (b), 302.43, 303.07 (3), 304.06 (1) (b), 801.09 (2) (a), 802.06 (1), 804.01 (1), 804.05 (1), 804.06 (1) (a), 804.08 (1) (a), 804.09 (2), 804.11 (1) (a), 814.24, 814.245 (3), 814.29 (1) (a), 814.29 (3) (b), 893.16 (1) and 893.82 (3); and to create 301.328, 302.11 (1q), 801.02 (7) (a), (c) and (d), 802.05 (3), 804.015, 806.025, 807.04 (2), 807.15, 809.103, 813.02 (1) (c), 813.40, 814.25, 814.29 (1m), 893.735, 893.82 (3m), 895.45 and 895.76 of the statutes; relating to: litigation by persons incarcerated, imprisoned, confined or detained in a jail or prison, immunity from civil liability, the time period for the state to respond to an action and limiting access to public records.

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

AB688-ASA1, s. 1 Section 1. 19.35 (3) (f) of the statutes is amended to read:

AB688-ASA1,2,7 19.35 (3) (f) An authority may require prepayment by a requester of any fee or fees imposed under this subsection if the total amount exceeds $5. If the requester is a prisoner, as defined in s. 301.01 (2), or is a person confined in a federal correctional institution located in this state, and he or she has failed to pay any fee that was imposed by the authority for a request made previously by that requester, the authority may require prepayment both of the amount owed for the previous request and the amount owed for the current request.

AB688-ASA1, s. 2 Section 2. 301.048 (3) (d) of the statutes is amended to read:

AB688-ASA1,2,13 301.048 (3) (d) A person may seek review of a final decision of the department of corrections, or of the division of hearings and appeals in the department of administration acting under s. 304.06 (3), relating to denials of eligibility for or placement in sanctions, or relating to discipline or revocation under or termination from the intensive sanctions program only by the common law writ of certiorari.

AB688-ASA1, s. 3 Section 3. 301.328 of the statutes is created to read:

AB688-ASA1,2,18 301.328 Judgment for litigation loans to prisoners. (1) In this section, "litigation loan" means a loan made to a prisoner by the department to pay for paper, photocopying, postage or other expenses associated with litigation commenced by the prisoner.

AB688-ASA1,3,5 (2) If a prisoner fails to repay a litigation loan to the department, the warden of the institution where the prisoner is incarcerated, imprisoned, confined or detained may submit a certification under oath to the clerk of circuit court in the county where the institution is located. The certification shall state the amount of litigation loans unpaid, the name and location of the prisoner and such other information as the court considers necessary. The court shall order that the amount certified by the warden be a judgment on behalf of the state and against the prisoner if the prisoner fails to submit a written objection to the court within 20 days after the court receives the certification from the warden. If the prisoner timely submits a written objection to the certification, the court shall consider the objection to be a complaint in a civil action and proceed under the rules of procedure under ch. 799, without requiring the service of a summons or the payment of filing fees.

AB688-ASA1,3,9 (3) At the same time that the warden submits the certification to the court, the warden shall provide the prisoner with a copy of the certification. The warden shall attach to the certification provided to the prisoner a notice informing the prisoner of all of the following:

AB688-ASA1,3,13 (a) That if the prisoner fails to submit a written objection to the court within 20 days after the court receives the certification from the warden, the court shall order that the amount certified by the warden be a judgment on behalf of the state and against the prisoner.

AB688-ASA1,3,15 (b) The name and address of the circuit court where the certification was submitted.

AB688-ASA1,3,18 (c) That if the prisoner timely objects to the certification, the objection will be considered a complaint for purposes of the commencement of a civil suit under ch. 799.

AB688-ASA1,3,20 (d) That the prisoner is required to submit a copy of the objection to the warden at the time he or she submits the objection to the clerk of circuit court.

AB688-ASA1, s. 4 Section 4. 302.11 (1) of the statutes is amended to read:

AB688-ASA1,4,2 302.11 (1) The warden or superintendent shall keep a record of the conduct of each inmate, specifying each infraction of the rules. Except as provided in subs. (1g), (1m), (1q), (7) and (10), each inmate is entitled to mandatory release on parole by the department. The mandatory release date is established at two-thirds of the sentence. Any calculations under this subsection or sub. (1q) (b) or (2) (b) resulting in fractions of a day shall be rounded in the inmate's favor to a whole day.

AB688-ASA1, s. 5 Section 5. 302.11 (1q) of the statutes is created to read:

AB688-ASA1,4,7 302.11 (1q) (a) An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall have his or her mandatory release date extended by the number of days specified in the court order prepared under s. 807.15 (3).

AB688-ASA1,4,10 (b) Upon receiving a court order issued under s. 807.15, the department shall recalculate the mandatory release date of the inmate to whom the order applies and shall inform the inmate of his or her new mandatory release date.

AB688-ASA1, s. 6 Section 6. 302.11 (2) (c) of the statutes is amended to read:

AB688-ASA1,4,13 302.11 (2) (c) No extension under this section subsection may require the inmate to serve more days in prison than provided for under the sentence.

AB688-ASA1, s. 7 Section 7. 302.11 (7) (b) of the statutes is amended to read:

AB688-ASA1,4,22 302.11 (7) (b) A parolee returned to prison for violation of the conditions of parole shall be incarcerated for the entire period of time determined by the department of corrections in the case of a waiver or the division of hearings and appeals in the department of administration in the case of a hearing under par. (a), unless paroled earlier under par. (c). The parolee is not subject to mandatory release under sub. (1) or presumptive mandatory release under sub. (1g). The period of time determined under par. (a) may be extended in accordance with sub. subs. (1q) and (2).

AB688-ASA1, s. 8 Section 8. 302.43 of the statutes is amended to read:

AB688-ASA1,5,10 302.43 Good time. Every inmate of a county jail is eligible to earn good time in the amount of one-fourth of his or her term for good behavior if sentenced to at least 4 days, but fractions of a day shall be ignored. An inmate shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). An inmate who violates any law or any regulation of the jail, or neglects or refuses to perform any duty lawfully required of him or her, may be deprived by the sheriff of good time under this section, except that the sheriff shall not deprive the inmate of more than 2 days good time for any one offense without the approval of the court. An inmate who files an action or special proceeding, including a petition for a common law writ of certiorari, to which s. 807.15 applies shall be deprived of the number of days of good time specified in the court order prepared under s. 807.15 (3).

AB688-ASA1, s. 9 Section 9. 303.07 (3) of the statutes is amended to read:

AB688-ASA1,5,19 303.07 (3) Each prisoner serving a sentence under this section who could have been sentenced to a state prison is subject to s. 302.11 (1), (1g) , (1q) and (2). Each prisoner serving such a sentence may be transferred to a state prison upon recommendation of the superintendent and approval of the department. The county board may, pursuant to its regulations approved by the department, extend to all other prisoners similar pecuniary earnings and rewards, subject to similar conditions and limitations as those prescribed by s. 302.12 for prisoners in the Wisconsin state prisons.

AB688-ASA1, s. 10 Section 10. 304.06 (1) (b) of the statutes is amended to read:

AB688-ASA1,6,10 304.06 (1) (b) Except as provided in sub. (1m) or s. 302.045 (3), 961.49 (2) or 973.0135, the parole commission may parole an inmate of the Wisconsin state prisons or any felon or any person serving at least one year or more in a county house of correction or a county reforestation camp organized under s. 303.07, when he or she has served 25% of the sentence imposed for the offense, or 6 months, whichever is greater. Except as provided in s. 939.62 (2m) or 973.014, the parole commission may parole an inmate serving a life term when he or she has served 20 years, as modified by the formula under s. 302.11 (1) and subject to extension using the formulas under s. 302.11 (2) (1q) and (2), if applicable. The person serving the life term shall be given credit for time served prior to sentencing under s. 973.155, including good time under s. 973.155 (4). The secretary may grant special action parole releases under s. 304.02. The department or the parole commission shall not provide any convicted offender or other person sentenced to the department's custody any parole eligibility or evaluation until the person has been confined at least 60 days following sentencing.

AB688-ASA1, s. 11 Section 11. 801.02 (7) of the statutes is renumbered 801.02 (7) (b) and amended to read:

AB688-ASA1,6,24 801.02 (7) (b) No prisoner, as defined in s. 301.01 (2), may commence a civil action or special proceeding against an officer, employe or agent of the department of corrections in his or her official capacity or as an individual for acts or omissions committed while carrying out his or her duties as an officer, employe or agent or while acting within the scope of his or her office, employment or agency , including a petition for a common law writ of certiorari, with respect to the prison or jail conditions in the facility in which he or she is or has been incarcerated, imprisoned or detained until the person has exhausted any all available administrative remedies that the department of corrections has promulgated by rule or that the custodian of the prisoner has reduced to writing. Except for petitions for a common law writ of certiorari, a prisoner commencing an action or special proceeding shall first comply with the provisions of s. 893.80 or 893.82.

AB688-ASA1, s. 12 Section 12. 801.02 (7) (a), (c) and (d) of the statutes are created to read:

AB688-ASA1,7,1 801.02 (7) (a) In this subsection:

AB688-ASA1,7,7 1. "Correctional institution" means any state or local facility that incarcerates or detains any adult accused of, charged with, convicted of, or sentenced for any crime or that incarcerates or detains any juvenile alleged to be delinquent or adjudicated to be delinquent on the basis of conduct that, if committed by an adult, would be a crime. A correctional institution includes a Type 1 prison, as defined in s. 301.01 (5), a Type 2 prison, as defined in s. 301.01 (6), a county jail and a house of correction.

AB688-ASA1,7,10 2. "Prisoner" means any person who is incarcerated, imprisoned or otherwise detained in a correctional institution or who is arrested or otherwise detained by a law enforcement officer. "Prisoner" does not include any of the following:

AB688-ASA1,7,11 a. A person committed under ch. 980.

AB688-ASA1,7,13 b. A person bringing an action seeking relief from a judgment terminating parental rights.

AB688-ASA1,7,16 c. A person bringing an action seeking relief from a judgment of conviction or a sentence of a court, including an action for an extraordinary writ or a supervisory writ or an action under s. 809.30, 809.40, 973.19 or 974.06.

AB688-ASA1,7,19 3. "Prison or jail conditions" means any matter related to the conditions of confinement or to the effects of actions by government officers, employes or agents on the lives of prisoners.

AB688-ASA1,8,6 (c) At the time of filing the initial pleading to commence an action or special proceeding, including a petition for a common law writ of certiorari, related to prison or jail conditions, a prisoner shall include, as part of the initial pleading, documentation showing that he or she has exhausted all available administrative remedies. The documentation shall include copies of all of the written materials that he or she provided to the administrative agency as part of the administrative proceeding and all of the written materials the administrative agency provided to him or her related to that administrative proceeding. The documentation shall also include all written materials included as part of any administrative appeal. The court shall deny a prisoner's request to proceed without the prepayment of fees and costs under s. 814.29 (1m) if the prisoner fails to comply with this paragraph or if the prisoner has failed to exhaust all available administrative remedies.

AB688-ASA1,8,16 (d) If the prisoner seeks leave to proceed without giving security for costs or without the payment of any service or fee under s. 814.29, the court shall dismiss any action or special proceeding, including a petition for a common law writ of certiorari, commenced by any prisoner if that prisoner has, on 3 or more prior occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b) 1. to 4. The court may permit a prisoner to commence the action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.

AB688-ASA1, s. 13 Section 13. 801.09 (2) (a) of the statutes is amended to read:

AB688-ASA1,8,23 801.09 (2) (a) Within 20 days, or within 45 days if the defendant is the state or an officer, agent, employe or agency of the state in an action or special proceeding brought within the purview of s. 893.82 or 895.46, exclusive of the day of service, after the summons has been served personally upon the defendant or served by substitution personally upon another authorized to accept service of the summons for the defendant; or

AB688-ASA1, s. 14 Section 14. 802.05 (3) of the statutes is created to read:

AB688-ASA1,9,3 802.05 (3) (a) A court shall review the initial pleading as soon as practicable after the action or special proceeding is filed with the court if the action or special proceeding is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2.

AB688-ASA1,9,6 (b) The court may dismiss the action or special proceeding under par. (a) without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:

AB688-ASA1,9,7 1. Is frivolous, as determined under s. 814.025 (3).

AB688-ASA1,9,9 2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

AB688-ASA1,9,10 3. Seeks monetary damages from a defendant who is immune from such relief.

AB688-ASA1,9,11 4. Fails to state a claim upon which relief may be granted.

AB688-ASA1,9,15 (c) If a court dismisses an action or special proceeding under par. (b), the court shall notify the department of justice or the attorney representing the political subdivision, as appropriate, of the dismissal by a procedure developed by the director of state courts in cooperation with the department of justice.

AB688-ASA1,9,18 (d) The dismissal of an action or special proceeding under par. (b) does not relieve the prisoner from paying the full filing fee related to that action or special proceeding.

AB688-ASA1, s. 15 Section 15. 802.06 (1) of the statutes is amended to read:

AB688-ASA1,9,25 802.06 (1) When presented. A Except when a court dismisses an action or special proceeding under s. 802.05 (3), a defendant shall serve an answer within 20 days after the service of the complaint upon the defendant. If a guardian ad litem is appointed for a defendant, the guardian ad litem shall have 20 days after appointment to serve the answer. A party served with a pleading stating a cross-claim against the party shall serve an answer thereto within 20 days after the service upon the party. The plaintiff shall serve a reply to a counterclaim in the answer within 20 days after service of the answer. The state or an agency of the state or an officer, employe or agent of the state in an action brought within the purview of s. 893.82 or 895.46 shall serve an answer to the complaint or to a cross-claim or a reply to a counterclaim within 45 days after service of the pleading in which the claim is asserted. If any pleading is ordered by the court, it shall be served within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under sub. (2) alters these periods of time as follows, unless a different time is fixed by order of the court: if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within 10 days after notice of the court's action; or if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

AB688-ASA1, s. 16 Section 16. 804.01 (1) of the statutes is amended to read:

AB688-ASA1,10,21 804.01 (1) Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under sub. (3), and except as provided in s. 804.015, the frequency of use of these methods is not limited.

AB688-ASA1, s. 17 Section 17. 804.015 of the statutes is created to read:

AB688-ASA1,10,24 804.015 Limits on discovery by prisoners. (1) In this section,"prisoner" has the meaning given s. 801.02 (7) (a) 2.

AB688-ASA1,11,7 (2) Unless ordered by the court, a prisoner in an action or special proceeding may not obtain discovery before the court receives a copy of the answer or other responsive pleading in the action commenced by the prisoner. If a defendant submits a motion to dismiss or a motion for summary judgment, no discovery may be obtained until the court decides that the prisoner has a reasonable opportunity to prevail on the merits, or until the court decides the merits of the motion, unless the court orders a party to submit to discovery.

AB688-ASA1,11,15 (3) If a court allows a prisoner to obtain discovery under sub. (2) before the court decides that the prisoner has a reasonable opportunity to prevail on the merits, receives a copy of the answer or other responsive pleading in the action, or decides the merits of a motion to dismiss or a motion for summary judgment, the court order shall be narrowly tailored to limit the discovery to allow only discovery that is essential to enable the prisoner to obtain the evidence necessary to his or her case. The court shall limit the discovery so as to provide a minimal intrusion in the activities of any person subject to discovery under this subsection.

AB688-ASA1,11,19 (4) If a prisoner commences an action or special proceeding, the court shall limit the number of requests for interrogatories, production of documents or admissions to 15, unless good cause is shown for any additional requests. This number may not be expanded by the use of subparts to the interrogatories.

AB688-ASA1, s. 18 Section 18. 804.05 (1) of the statutes is amended to read:

AB688-ASA1,12,5 804.05 (1) When depositions may be taken. After commencement of the action, except as provided in s. 804.015, any party may take the testimony of any person including a party by deposition upon oral examination. The attendance of witnesses may be compelled by subpoena as provided in s. 805.07. The attendance of a party deponent or of an officer, director or managing agent of a party may be compelled by notice to the named person or attorney meeting the requirements of sub. (2) (a). Such notice shall have the force of a subpoena addressed to the deponent. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes, except when the party seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.

AB688-ASA1, s. 19 Section 19. 804.06 (1) (a) of the statutes is amended to read:

AB688-ASA1,12,16 804.06 (1) (a) After commencement of the action, except as provided in s. 804.015, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by subpoena as provided in s. 805.07. The attendance of a party deponent or of an officer, director, or managing agent of a party may be compelled by notice to the person to be deposed or his or her attorney meeting the requirements of s. 804.05 (2) (a). The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes, except when the person seeking to take the deposition is the state agency or officer to whose custody the prisoner has been committed.

AB688-ASA1, s. 20 Section 20. 804.08 (1) (a) of the statutes is amended to read:

AB688-ASA1,13,2 804.08 (1) (a) Any Except as provided in s. 804.015, any party may serve upon any other party written interrogatories to be answered by the party served, or, if the party served is a public or private corporation or a limited liability company or a partnership or an association or a governmental agency or a state officer in an action arising out of the officer's performance of employment, by any officer or agent, who shall furnish such information as is available to the party. Interrogatories may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

AB688-ASA1, s. 21 Section 21. 804.09 (2) of the statutes is amended to read:

AB688-ASA1,13,18 804.09 (2) Procedure. The Except as provided in s. 804.015, the request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts. The party upon whom the request is served shall serve a written response within 30 days after the service of the request, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. The court may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under s. 804.12 (1) with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested.

AB688-ASA1, s. 22 Section 22. 804.11 (1) (a) of the statutes is amended to read:

AB688-ASA1,14,4 804.11 (1) (a) A Except as provided in s. 804.015, a party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of s. 804.01 (2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party.

AB688-ASA1, s. 23 Section 23. 806.025 of the statutes is created to read:

AB688-ASA1,14,7 806.025 Payment of judgment in cases involving prisoners. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB688-ASA1,14,9 (2) If a court enters a judgment for a monetary award on behalf of a prisoner, the court shall do all of the following: