AB768: Bill Text

AB768,302,13 813.02 (1) (c) If the court determines that a temporary injunction may be granted under par. (a) to a prisoner, as defined in s. 801.02 (7) (a) 2., in any action or special proceeding with respect to prison or jail conditions, as defined in s. 801.02 (7) (a) 3., the following apply:

AB768,302,19 1. The court may not issue the injunction until giving notice and an opportunity to be heard on the request for a preliminary injunction to the attorney general, if the case involves a prisoner in a state correctional institution, as defined in s. 801.02 (7) (a) 1., or to the attorney representing the local correctional institution involved and to all other interested parties. Any injunction issued without giving notice and an opportunity to be heard is void.

AB768,302,24 2. Any temporary injunction issued shall meet the requirements in s. 813.40 (1) (b). When determining what to require in the temporary injunction, the court shall give substantial weight to any adverse impact on public safety or on the operation of the facility involved in the action or special proceeding caused by the temporary injunction.

AB768,303,4 3. Any temporary injunction issued under this paragraph shall expire no later than 90 days after the day the temporary injunction is issued unless the court makes a finding that the requirements under s. 813.40 (1) (b) are met and makes the order final before the expiration of the 90-day period.

AB768, s. 663 Section 663. 813.40 of the statutes is created to read:

AB768,303,6 813.40 Injunctive relief in prison condition cases. (1) (a) In this section:

AB768,303,7 1. "Prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,303,8 2. "Prison or jail conditions" has the meaning given in s. 801.02 (7) (a) 3.

AB768,303,11 (b) If a court determines that an injunction may be granted to a prisoner in any action or special proceeding with respect to prison or jail conditions, any injunction issued shall meet all of the following criteria:

AB768,303,12 1. Require only what is necessary to correct the harm.

AB768,303,13 2. Is the least intrusive means necessary to correct that harm.

AB768,303,16 3. Does not require or permit a government official, employe or agent to exceed his or her authority or to violate a state law or local ordinance unless all of the following apply:

AB768,303,17 a. Federal law permits that relief.

AB768,303,18 b. The relief is necessary to correct the violation of a federal right.

AB768,303,19 c. No other relief will correct the violation of a federal right.

AB768,303,24 (c) If an injunction is issued that does not meet the requirements in par. (b), a defendant or intervenor is entitled to immediate termination of any prospective relief or to a revision of the injunction to meet those requirements. Prospective relief need not be terminated if the court makes written findings based on the record that the requirements under par. (b) are met.

AB768,304,7 (d) A court may not enter into or approve a consent decree in an action for injunctive relief under this section if that consent decree does not meet the requirements in par. (b). This paragraph does not prevent the parties from entering into a private settlement agreement that does not comply with the requirements in par. (b) if the terms of that settlement agreement are not subject to court enforcement other than the dismissal of the action or special proceeding based on the settlement agreement.

AB768,304,10 (2) When determining the extent of any injunction issued under this section, the court shall give substantial weight to any adverse impact on public safety or on the operation of the criminal justice system caused by the injunction.

AB768,304,21 (3) Any interested party may, 2 years after the date the court issued an injunction under this section, or one year after the court has denied a request under this subsection for modification or termination of the injunction, request that the court modify or terminate an injunction issued under this section. Any interested party may, 2 years after the effective date of this subsection .... [revisor inserts date], request that the court modify or terminate an injunction related to prison or jail conditions that was issued before the effective date of this subsection .... [revisor inserts date]. Any prospective relief issued under this section shall be stayed by the filing of a motion for modification or termination of the injunction for the period beginning on the 30th day after the motion is filed with the court and ending on the day the court enters a final order on the motion.

AB768,304,23 (4) This section does not prevent the parties from agreeing to terminate or modify an injunction issued under this section.

AB768,305,3 (5) This section does not authorize a court to order the construction of prisons, jails or other places of incarceration or to order the raising of taxes and does not expand the powers of a court under this chapter.

AB768,305,9 (6) This section does not authorize the court to issue a prisoner release order. Prisoner release orders may only be issued by habeas corpus or as otherwise required by the state or federal constitution. In this subsection, "prisoner release order" means any order that has the purpose or effect of reducing or limiting the prison or jail population, or that directs the release or nonadmission of prisoners to a prison or jail.

AB768,305,14 (7) This section may not be used as a substitute for a petition for a common law writ of certiorari to challenge the disposition of a complaint concerning prison or jail conditions, to challenge the validity of a probation revocation, parole denial or revocation, a mandatory release date or to challenge any issue regarding the fact or duration of confinement.

AB768, s. 664 Section 664. 814.04 (1m) of the statutes is created to read:

AB768,305,23 814.04 (1m) Attorney fees in prisoner litigation. (a) In any action or special proceeding brought by a prisoner, as defined in s. 801.02 (7) (a) 2., in which attorney fees are authorized, those fees may not be awarded, except to the extent that the fees were directly and reasonably incurred in proving an actual violation of the prisoner's rights protected by a statute whose violation includes the awarding of attorney fees as one of the possible court orders. The amount of attorney fees awarded shall be proportionately related to the relief ordered for the violation or shall be the attorney fees directly and reasonably incurred in enforcing the relief ordered for the violation.

AB768,306,5 (b) When a court enters a judgment for a monetary award in an action described under par. (a), 25% of the judgment shall be applied to satisfy the amount of the attorney fees awarded against the defendant. The defendant shall pay any excess attorney fees owing after 25% of the judgment is applied to satisfy those fees in an amount not to exceed 125% of the monetary award. No award of attorney fees under this subsection may be based on an hourly rate greater than that established for the payment of court-appointed counsel.

AB768,306,8 (c) Nothing in this subsection prohibits a prisoner from agreeing to pay attorney fees in excess of the amount authorized under this subsection if the excess fee is paid by the prisoner.

AB768, s. 665 Section 665. 814.24 of the statutes is amended to read:

AB768,306,14 814.24 Action against city, village or town official, cost. Costs, if any, in an action against a city, village or town officer in his or her official capacity, except an action directly involving the title to the office, and except as provided in s. 814.25, shall not be awarded against that officer, but may be awarded against the city, village or town.

AB768, s. 666 Section 666. 814.245 (3) of the statutes is amended to read:

AB768,306,21 814.245 (3) If Except as provided in s. 814.25, if an individual, a small nonprofit corporation or a small business is the prevailing party in any action by a state agency or in any proceeding for judicial review under s. 227.485 (6) and submits a motion for costs under this section, the court shall award costs to the prevailing party, unless the court finds that the state agency was substantially justified in taking its position or that special circumstances exist that would make the award unjust.

AB768, s. 667 Section 667. 814.25 of the statutes is created to read:

AB768,306,23 814.25 Costs in actions by prisoners. (1) In this section:

AB768,306,24 (a) "Prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,306,25 (b) "Prison or jail conditions" has the meaning given in s. 801.02 (7) (a) 3.

AB768,307,3 (2) If a prisoner brings an action or special proceeding related to prison or jail conditions, no costs may be allowed against the state, a state agency or a county, city, village or town, or against any individual defendant when sued in an official capacity.

AB768,307,9 (3) If the prevailing party is the state, a state agency or a county, city, village or town or an individual in any action or special proceeding commenced by a prisoner related to prison or jail conditions, the prisoner shall pay the full fees and costs allowed under this chapter. The prisoner shall be required to pay the fees and costs out of any trust fund accounts that he or she holds in the same manner as payment is required for court fees under s. 814.29 (1m) (e).

AB768, s. 668 Section 668. 814.29 (1) (a) of the statutes is amended to read:

AB768,307,16 814.29 (1) (a) Any Except as provided in sub. (1m), any person may commence, prosecute or defend any action or special proceeding in any court, or any writ of error or appeal therein, without being required to give security for costs or to pay any service or fee, upon order of the court based on a finding that because of poverty the person is unable to pay the costs of the action or special proceeding, or any writ of error or appeal therein, or to give security for those costs.

AB768, s. 669 Section 669. 814.29 (1m) of the statutes is created to read:

AB768,307,25 814.29 (1m) (a) If a prisoner, as defined in s. 801.02 (7) (a) 2., brings a civil action or special proceeding, or a writ of error or appeal of a civil action under this section, the prisoner shall pay the full amount of the costs and fees. The court shall assess and, when funds exist, collect from the prisoner's trust fund account the amount necessary to pay any required costs or fees. If the amount in the prisoner's trust fund account is less than the required costs or fees, the court shall order that the current balance in the prisoner's trust fund account be paid as an initial partial payment of costs and fees.

AB768,308,4 (b) If a prisoner makes a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to prepay the fees or costs or without being required to give security for costs, the prisoner shall submit all of the following:

AB768,308,5 1. The affidavit required under sub. (1) (b).

AB768,308,10 2. An affidavit stating that the prisoner has paid all of the fees or costs previously assessed by a court for bringing an action or special proceeding, in state or federal court, that was dismissed on the grounds that the action or special proceeding was frivolous, malicious or failed to state a claim upon which relief may be granted.

AB768,308,18 3. A certified copy of the trust fund account statement for the prisoner for the 6-month period immediately preceding the filing of the request for leave to commence or defend an action, special proceeding, writ of error or appeal, or for the period that the prisoner was incarcerated, imprisoned or detained, if that period is less than 6 months. The trust fund account statement must be obtained from the appropriate official at each facility in which the prisoner is or was incarcerated, imprisoned, confined or detained. In this subdivision, "trust fund account statement" includes accounts accessible to the prisoner before or upon release.

AB768,308,22 (c) The court may issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without the prepayment of fees or costs or without being required to give security for costs if all of the following conditions are met:

AB768,308,25 1. The court determines that the prisoner does not have assets or other means by which to pay the fees or costs or to give security for the costs after reviewing the information provided under par. (b).

AB768,309,4 2. The prisoner has paid all of the fees or costs previously assessed by a state or federal court for bringing an action or special proceeding that was dismissed on the grounds that the action or special proceeding was frivolous, malicious or failed to state a claim upon which relief may be granted.

AB768,309,6 3. The court orders that the fees or costs not paid are a debt owed the court by the prisoner.

AB768,309,9 4. The prisoner authorizes in writing the agency having custody of the prisoner's prison trust fund account to forward payments from the prisoner's account to the clerk of court until the fees or costs are paid in full.

AB768,309,15 (d) If the court determines that the prisoner who made the affidavit does have assets in an account, whether accessible to the prisoner only upon release or before release, to pay part of the filing fees or costs, the court shall order the prisoner to pay an initial filing fee before being allowed to commence or defend an action, special proceeding, writ of error or appeal. The initial filing fee shall be the current balance of the prisoner's trust fund account or the required filing fee, whichever is less.

AB768,309,22 (e) The agency having custody of the prisoner shall freeze the prisoner's trust fund account until the deposits in that account are sufficient to pay the balance owed for the costs and fees. When the deposits in that account are sufficient to pay the balance owed for the court costs and fees, the agency shall forward that amount to the court. This paragraph does not prohibit the payment from the prisoner's trust account of court-ordered payments for child or family support, restitution or federal court fees or for the payments of debts owed the department of corrections.

AB768,310,2 (f) If the court believes that a prisoner is in imminent danger of serious physical harm, the court shall issue an order permitting the prisoner to commence or defend an action, special proceeding, writ of error or appeal without being required to submit the statement under par. (b) or prepaying the initial filing fee under par. (d).

AB768,310,6 (g) Except as provided under par. (f), if a prisoner files an action, special proceeding, writ of error or appeal under this subsection without complying with the requirements under pars. (b) and (d), the court shall dismiss the action, special proceeding, writ of error or appeal without prejudice.

AB768,310,10 (h) The custodian of the trust fund account of a prisoner shall provide the prisoner with the certified copy of the trust fund account statement required under par. (b) if the custodian determines that the prisoner requires that copy for submittal to a court under this subsection.

AB768,310,17 (i) Except as provided in par. (f), the court shall deny a prisoner's request for leave to commence any action or special proceeding under this subsection, including a petition for a common law writ of certiorari, if that prisoner has, on 2 or more 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 under this section, 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.

AB768,310,20 (j) The court shall dismiss any action for which costs and fees are unpaid and for which any released prisoner fails to make arrangements for payment within 30 days after the prisoner's release.

AB768,311,6 (k) A prisoner may appeal the court's determination of lack of indigency under this section without being required to pay the initial filing fee. If the court's determination is upheld on appeal, the prisoner shall be liable for the initial filing fee and for the fee for filing the appeal if he or she proceeds with the action. If a prisoner who is required to pay costs and fees under this paragraph files an action or special proceeding, or a writ of error or appeal of a civil action, including a petition for a common law writ of certiorari, without the prepayment of costs and fees, the court shall return the papers to the prisoner unfiled. The prisoner may not file any other action or special proceeding, or a writ of error or appeal of a civil action, including a petition for a common law writ of certiorari, in the state courts until any outstanding debt owed to the court is paid.

AB768, s. 670 Section 670. 814.29 (3) (b) of the statutes is amended to read:

AB768,311,17 814.29 (3) (b) If the affiant is a prisoner, as defined in s. 46.011 (2) 801.02 (7) (a) 2., or a person confined in a federal correctional institution located in this state, a request for leave to commence or defend an action, special proceeding, writ of error or appeal without being required to pay fees or costs or to give security for costs constitutes consent as provided in par. (a), and, if the judgment is in favor of the opposing party, constitutes consent for the court to order the institution to deduct the unpaid fees and costs, including attorney fees listed in par. (a), from the amount in the inmate's account at the any time the judgment was rendered account has sufficient money to pay the unpaid fees and costs. This paragraph does not prevent the collection of the unpaid fees and costs by any other method.

AB768, s. 671 Section 671. 859.07 (2) of the statutes is amended to read:

AB768,312,5 859.07 (2) If the decedent was at the time of death or at any time prior thereto a patient or inmate of any state or county hospital or institution or any person responsible for any obligation owing to the state or county under s. 46.03 (18), 46.10, 48.36, 301.03 (18), 301.12 or 938.36 or if the decedent or the spouse of the decedent ever received medical assistance under subch. IV of ch. 49, long-term community support services funded under s. 46.27 (7) or aid under s. 49.68, 49.683 or 49.685, the personal representative shall send notice in writing of the date set under s. 859.01 by registered or certified mail to the department of health and family services or the department of corrections, as applicable, and the county clerk of the applicable county not less than 30 days before the date set under s. 859.01, upon such blanks and containing such information as the applicable department or county clerk may provide. The applicable county is the county of residence, as defined in s. 49.001 (6).

AB768, s. 672 Section 672. 880.33 (2) (a) 3. of the statutes is amended to read:

AB768,312,12 880.33 (2) (a) 3. If the person is an adult who is indigent, the county of legal settlement shall be the county liable for any fees due the guardian ad litem and, if counsel was not appointed under s. 977.08, for any legal fees due the person's legal counsel. If the person is a minor, the person's parents or the county of legal settlement shall be liable for any fees due the guardian ad litem as provided in s. 48.235 (8).

AB768, s. 673 Section 673. 880.331 (8) of the statutes is amended to read:

AB768,312,21 880.331 (8) Compensation. On order of the court, the guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue, unless the court otherwise directs or unless the guardian ad litem is appointed for a minor, in which case the compensation of the guardian ad litem shall be paid by the minor's parents or the county of venue as provided in s. 48.235 (8). If the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys under s. 977.08 (4m) (b).

AB768, s. 674 Section 674. 893.16 (1) of the statutes is amended to read:

AB768,313,3 893.16 (1) If a person entitled to bring an action is, at the time the cause of action accrues, either under the age of 18 years, except for actions against health care providers; or insane, or imprisoned on a criminal charge mentally ill, the action may be commenced within 2 years after the disability ceases, except that where the disability is due to insanity or imprisonment mental illness, the period of limitation prescribed in this chapter may not be extended for more than 5 years.

AB768, s. 675 Section 675. 893.735 of the statutes is created to read:

AB768,313,6 893.735 Action by prisoner contesting a governmental decision. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,313,13 (2) An action or special proceeding, including a petition for a common law writ of certiorari, made on behalf of a prisoner is barred unless commenced within 30 days after the cause of action accrues if that action or special proceeding concerns a decision or disposition under s. 801.02 (7) (b). The 30-day period shall begin on the date of the decision or disposition, except that the court may extend the period by as many days as the prisoner proves have elapsed between the decision or disposition and the prisoner's actual notice of the decision or disposition.

AB768,313,16 (3) In this section, a petition for a common law writ of certiorari is commenced at the time the prisoner files a petition for a common law writ of certiorari with a court.

AB768, s. 676 Section 676. 893.82 (3) of the statutes is amended to read:

AB768,314,5 893.82 (3) Except as provided in sub. (5m), no civil action or civil proceeding may be brought against any state officer, employe or agent for or on account of any act growing out of or committed in the course of the discharge of the officer's, employe's or agent's duties, and no civil action or civil proceeding may be brought against any nonprofit corporation operating a museum under a lease agreement with the state historical society, unless within 120 days of the event causing the injury, damage or death giving rise to the civil action or civil proceeding, the claimant in the action or proceeding serves upon the attorney general written notice of a claim stating the time, date, location and the circumstances of the event giving rise to the claim for the injury, damage or death and the names of persons involved, including the name of the state officer, employe or agent involved. A Except as provided under sub. (3m), a specific denial by the attorney general is not a condition precedent to bringing the civil action or civil proceeding.

AB768, s. 677 Section 677. 893.82 (3m) of the statutes is created to read:

AB768,314,10 893.82 (3m) If the claimant is a prisoner, as defined in s. 801.02 (7) (a) 2., the prisoner may not commence the civil action or proceeding until the attorney general denies the claim or until 120 days after the written notice under sub. (3) is served upon the attorney general, whichever is earlier.

AB768, s. 678 Section 678. 895.45 of the statutes is created to read:

AB768,314,16 895.45 Exemption from civil liability; attorney general opinion. Any legal entity included within the provisions of s. 893.80 and any officer, employe or agent included within the provisions of s. 893.80, 893.82 or 895.46 is immune from civil liability for damages for his or her acts or omissions committed in reasonable reliance upon a written opinion of the attorney general.

AB768, s. 679 Section 679. 895.76 of the statutes is created to read:

AB768,314,21 895.76 Limits on recovery by prisoners. A prisoner, as defined in s. 801.02 (7) (a) 2., may not recover damages for mental or emotional injury unless the prisoner shows that he or she has suffered a physical injury as a result of the same incident that caused the mental or emotional injury.

AB768, s. 680 Section 680. 938.21 (5) (b) of the statutes is amended to read:

AB768,315,2 938.21 (5) (b) An order relating to a juvenile held in custody outside of his or her home shall also describe any efforts that were made to permit the juvenile to remain at home and the services that are needed to ensure the juvenile's well-being, to enable the juvenile to return safely to his or her home and to involve the parents in planning for the juvenile.

AB768, s. 681 Section 681. 938.235 (8) of the statutes is renumbered 938.235 (8) (a) and amended to read:

AB768,315,10 938.235 (8) (a) On order of the court, the A guardian ad litem appointed under this chapter shall be allowed reasonable compensation to be paid by the county of venue. If compensated at a rate that the court determines is reasonable, except that, if the court orders a county to pay the compensation of the guardian ad litem, the amount ordered may not exceed the compensation paid to private attorneys payable to a private attorney under s. 977.08 (4m) (b).

AB768, s. 682 Section 682. 938.235 (8) (b), (c), (d) and (e) of the statutes are created to read:

AB768,315,23 938.235 (8) (b) The court may order either or both of the parents of a juvenile for whom a guardian ad litem is appointed under this chapter to pay all or any part of the compensation of the guardian ad litem. In addition, upon motion by the guardian ad litem, the court may order either or both of the parents of the juvenile to pay the fee for an expert witness used by the guardian ad litem, if the guardian ad litem shows that the use of the expert is necessary to assist the guardian ad litem in performing his or her functions or duties under this chapter. If one or both parents are indigent or if the court determines that it would be unfair to a parent to require him or her to pay, the court may order the county of venue to pay the compensation and fees, in whole or in part. If the court orders the county of venue to pay because a parent is indigent, the court may also order either or both of the parents to reimburse the county, in whole or in part, for the payment.

AB768,316,2 (c) At any time before the final order in a proceeding in which a guardian ad litem is appointed for a juvenile under this chapter, the court may order a parent of the juvenile to place payments in an escrow account in an amount estimated to be sufficient to pay any compensation and fees payable under par. (b).

AB768,316,5 (d) If the court orders a parent to reimburse a county under par. (b), the court may order a separate judgment for the amount of the reimbursement in favor of the county and against the parent who is responsible for the reimbursement.

AB768,316,7 (e) The court may enforce its orders under this subsection by means of its contempt powers.