AB768: Bill Text

AB768,285,7 (2) If a prisoner has previously prosecuted a writ of habeas corpus to obtain relief from imprisonment and the legality of that imprisonment has been determined by a court, the prisoner may not prosecute another writ of habeas corpus to obtain relief from that imprisonment based on a claim that was raised in the previous habeas corpus proceeding.

AB768,285,13 (3) If a prisoner has previously prosecuted a writ of habeas corpus to obtain relief from imprisonment and the legality of that imprisonment has been determined by a court, the prisoner may not prosecute another writ of habeas corpus to obtain relief from that imprisonment based on a claim that was not raised in the previous habeas corpus proceeding unless the prisoner makes a prima facie showing in his or her petition that any of the following applies to the claim:

AB768,285,17 (a) The claim relies on a rule of constitutional law that was established by the supreme court of this state or the United States after the previous determination of the legality of the imprisonment or restraint and that the supreme court held to apply retroactively to cases on collateral review.

AB768,285,24 (b) The facts underlying the claim could not previously have been discovered through the exercise of due diligence and, if proven and viewed in light of the evidence as a whole, would establish by clear and convincing evidence that, but for a constitutional error, no reasonable factfinder would have found the prisoner guilty of the offense for which he or she is imprisoned or, if the prisoner is challenging a revocation of probation or parole, no reasonable factfinder would have found that the prisoner violated the conditions of probation or parole.

AB768,286,5 (4) A prisoner may file a successive petition for a writ of habeas corpus only in the circuit court in the county of venue specified in s. 801.50 (4). The circuit court shall dismiss the petition if it raises a claim raised in a previous habeas corpus proceeding or, if the petition raises a claim not raised in a previous habeas corpus proceeding, if it does not satisfy any of the criteria specified in sub. (3) (a) or (b).

AB768, s. 634 Section 634. 782.04 (intro.), (1), (2), (3) and (5) of the statutes are renumbered 782.04 (1m) (intro.), (a), (b), (c) and (d), and 782.04 (1m) (intro.), as renumbered, is amended to read:

AB768,286,10 782.04 (1m) (intro.) Such A petition for a writ of habeas corpus must be verified and must state in substance all of the following:

AB768, s. 635 Section 635. 782.04 (3m) and (4m) of the statutes are created to read:

AB768,286,17 782.04 (3m) If the petitioner is a prisoner, as defined in s. 782.035 (1), the petition shall state whether the prisoner has filed a previous petition challenging his or her imprisonment. If the prisoner has filed a previous petition challenging his or her imprisonment, the petition must contain a copy of the previous petition and shall indicate the disposition of the petition and the court in which the disposition was made.

AB768,286,19 (4m) If the petitioner is imprisoned in a prison or jail under a sentence for a crime, the petition shall comply with all of the following:

AB768,286,22 (a) The petition must contain a copy of any motion made under s. 974.06 and shall indicate the disposition of the motion and the court in which the disposition was made. If no motion was made under s. 974.06, the petition shall so state.

AB768,287,2 (b) The petition shall state whether the prisoner has challenged his or her imprisonment, or the proceeding that resulted in his or her imprisonment, in an appeal under s. 974.02 or a proceeding for review by writ of certiorari and, if so, the outcome of the appeal or proceeding.

AB768, s. 636 Section 636. 782.04 (4) of the statutes is renumbered 782.04 (2m) and amended to read:

AB768,287,11 782.04 (2m) If the prisoner's imprisonment is by virtue of any order or process, a copy thereof of the order or process must be annexed, to the petition or it the petition must be averred allege either that, by reason of such the prisoner being removed or concealed, a demand of such for a copy of the order or process could not be made or that such a demand was made and a fee of $1 therefor for the copy was tendered to the person having such prisoner in custody, and that such copy was of the prisoner but the person refused to provide the copy.

AB768, s. 637 Section 637. 782.045 of the statutes is created to read:

AB768,287,18 782.045 Time for filing petition for writ. (1) In this section, "prisoner" means a person who is imprisoned or detained in a prison or jail and who is seeking relief from a judgment of conviction for a crime, from a sentence for a crime, from a revocation of parole or probation or from an action by a government officer, employe or agent that affects the person's imprisonment or the person's status as a probationer or parolee.

AB768,287,20 (2) A person prosecuting a writ of habeas corpus shall file a petition for a writ of habeas corpus within one year after whichever of the following dates is latest:

AB768,287,25 (a) The date on which the time expires for appealing or seeking postconviction relief under s. 974.02, if the person did not appeal or seek postconviction relief under s. 974.02, or the date on which the appeal or motion seeking postconviction relief is finally adjudicated, if the person did appeal or seek postconviction relief under s. 974.02.

AB768,288,3 (b) The date on which a state law that prevented a person from filing a petition for a writ of habeas corpus is declared to violate the constitution or laws of this state or the constitution of the United States.

AB768,288,9 (c) The date on which the rule of constitutional law on which the petition is based is recognized, if the person is alleging that his or her imprisonment is in violation of a rule of constitutional law under the constitution of this state or the United States that is newly recognized by the supreme court of this state or the United States and that is made retroactively applicable to pending cases on collateral review.

AB768,288,11 (d) The date on which the facts on which the petition is based could have been discovered through the exercise of due diligence.

AB768, s. 638 Section 638. 782.195 of the statutes is created to read:

AB768,288,19 782.195 Effect of previous appeals and postconviction motions. (1) Except as provided in sub. (2), if, before he or she filed a petition for a writ of habeas corpus, a prisoner challenged his or her imprisonment, or the proceeding that resulted in his or her imprisonment, in an appeal or postconviction motion under s. 974.02 or 974.06 or a review by writ of certiorari, a court or judge proceeding under this chapter is bound as to all issues of law and fact decided by the final adjudication of the appeal, postconviction motion or proceeding for certiorari.

AB768,289,2 (2) A court or judge proceeding under this chapter is not bound under sub. (1) by an issue of law and fact decided by the final adjudication of an appeal, postconviction motion or action for certiorari if the prisoner demonstrates by clear and convincing evidence that there is a material fact that did not appear in the record of the appeal, postconviction motion or proceeding for certiorari, that the fact would probably change the outcome of the appeal, postconviction motion or proceeding for certiorari and that by exercising due diligence he or she could not have caused that fact to appear in the record.

AB768, s. 639 Section 639. 782.20 of the statutes is amended to read:

AB768,289,7 782.20 When party discharged. If Except as provided in s. 782.205, if no legal cause be shown for such imprisonment or restraint or for the continuance thereof the court or judge shall make a final order discharging such party from the custody or restraint.

AB768, s. 640 Section 640. 782.205 of the statutes is created to read:

AB768,289,13 782.205 No discharge or default for failure to make return. If a respondent neglects to obey and make return to a writ of habeas corpus, the court or judge may not discharge a prisoner from custody or restraint or otherwise grant a default judgment against the respondent but shall proceed as provided under ss. 782.16, 782.17, 782.18 and 782.19, as applicable.

AB768, s. 641 Section 641. 788.01 of the statutes is amended to read:

AB768,289,24 788.01 Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employes, or between employers and associations of employes, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 101.143 (6s) or 230.44 (4) (bm).

AB768, s. 642 Section 642. 801.02 (7) of the statutes is renumbered 801.02 (7) (c) and amended to read:

AB768,290,13 801.02 (7) (c) 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. 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.

AB768, s. 643 Section 643. 801.02 (7) (a), (b) and (d) of the statutes are created to read:

AB768,290,15 801.02 (7) (a) In this subsection:

AB768,290,21 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.

AB768,290,24 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.

AB768,291,3 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, but excluding the fact or duration of the confinement.

AB768,291,5 (b) Review by the common law writ of certiorari is a prisoner's exclusive remedy for doing any of the following:

AB768,291,7 1. Challenging the validity of a decision relating to prisoner discipline, the revocation of probation or the denial or revocation of parole.

AB768,291,11 2. Challenging the disposition of a complaint concerning prison or jail conditions, including a complaint concerning a program assignment, institution assignment or security classification, for which there is an adequate administrative remedy.

AB768,291,23 (d) 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.

AB768, s. 644 Section 644. 801.09 (2) (a) of the statutes is amended to read:

AB768,292,6 801.09 (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

AB768, s. 645 Section 645. 802.05 (3) of the statutes is created to read:

AB768,292,10 802.05 (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.

AB768,292,13 (b) The court may dismiss the action or special proceeding without requiring the defendant to answer the pleading if the court determines that the action or special proceeding meets any of the following conditions:

AB768,292,14 1. Is frivolous, as determined under s. 814.025 (3).

AB768,292,16 2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

AB768,292,17 3. Seeks monetary damages from a defendant who is immune from such relief.

AB768,292,18 4. Fails to state a claim upon which relief may be granted.

AB768,292,20 (c) The court may dismiss the underlying claim under par. (b) without first requiring the exhaustion of administrative remedies.

AB768,292,24 (d) 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.

AB768,293,3 (e) 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.

AB768,293,12 (f) Notwithstanding s. 814.29 (1m) (i), a prisoner who has a 2nd or succeeding action or proceeding dismissed under this section, including a petition for a common law writ of certiorari, shall be held in contempt of court for interfering with the administration of justice. The court shall impose a sanction under s. 785.04 and shall prohibit the prisoner from filing any other action or special proceeding in state court for the earlier of 2 years after the date of the sanction or until the prisoner pays any monetary sanction. The court may permit a prisoner to commence an action or special proceeding, notwithstanding this paragraph, if the court determines that the prisoner is in imminent danger of serious physical injury.

AB768, s. 646 Section 646. 802.06 (1) of the statutes is amended to read:

AB768,294,8 802.06 (1) When presented. A Except as provided under sub. (1m) or 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 Except as provided under sub. (1m), 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.

AB768, s. 647 Section 647. 802.06 (1m) of the statutes is created to read:

AB768,294,16 802.06 (1m) Waiver of answer. (a) A defendant may waive the right to answer or to submit a responsive pleading to a complaint or other pleading in any action or special proceeding brought by a prisoner, as defined in s. 801.02 (7) (a) 2. The failure to respond to an action or special proceeding related to prison or jail conditions shall act as an affirmative defense against all of the allegations contained in the complaint or other pleading and shall not be considered as a waiver of any affirmative defense or of immunity.

AB768,294,21 (b) The court shall review the pleadings submitted under this subsection, grant relief to the defendant or, if the court determines that the plaintiff has a reasonable opportunity to prevail on the merits, order the defendant to answer or to submit a responsive pleading. No relief may be granted to the plaintiff unless an answer or responsive pleading has been submitted.

AB768, s. 648 Section 648. 802.06 (2) (a) (intro.) of the statutes is amended to read:

AB768,295,2 802.06 (2) (a) (intro.) Every Except as provided under sub. (1m), every defense, in law or fact, except the defense of improper venue, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or 3rd-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

AB768, s. 649 Section 649. 804.01 (1) of the statutes is amended to read:

AB768,295,10 804.01 (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.

AB768, s. 650 Section 650. 804.015 of the statutes is created to read:

AB768,295,13 804.015 Limits on discovery by prisoners. (1) In this section,"prisoner" has the meaning given s. 801.02 (7) (a) 2.

AB768,295,21 (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 waives his or her answer under s. 802.06 (1m) or 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.

AB768,296,4 (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.

AB768,296,8 (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.

AB768, s. 651 Section 651. 804.05 (1) of the statutes is amended to read:

AB768,296,19 804.05 (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.

AB768, s. 652 Section 652. 804.06 (1) (a) of the statutes is amended to read:

AB768,297,5 804.06 (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.

AB768, s. 653 Section 653. 804.08 (1) (a) of the statutes is amended to read:

AB768,297,15 804.08 (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.

AB768, s. 654 Section 654. 804.09 (2) of the statutes is amended to read:

AB768,298,6 804.09 (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.

AB768, s. 655 Section 655. 804.11 (1) (a) of the statutes is amended to read:

AB768,298,17 804.11 (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.

AB768, s. 656 Section 656. 806.025 of the statutes is created to read:

AB768,298,20 806.025 Payment of judgment in cases involving prisoners. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,298,22 (2) If a court enters a judgment for a monetary award on behalf of a prisoner, the court shall apply the provisions of s. 814.04 (1m) and do all of the following:

AB768,299,2 (a) Order that the award be used to satisfy any unpaid court order of restitution against the prisoner and any other civil judgment in favor of a victim of a crime committed by the prisoner. If the amount of the monetary award is insufficient to pay all these unpaid orders and judgments, the orders and judgments shall be paid based on the length of time they have existed, the oldest order being paid first.

AB768,299,5 (am) If money remains after the payment of all unpaid orders and judgments under par. (a), order reimbursement to the department of justice for an award made under ch. 949 for which the department is subrogated under s. 949.15.

AB768,299,9 (b) If money remains after the payment of reimbursement under par. (am), order the payment of court costs or filing fees previously assessed against the prisoner by a state court that remain unpaid, with the oldest costs or fees being paid first.

AB768,299,11 (c) If money remains after the payment of all court costs or filing fees under par. (b), order the payment of any unpaid litigation loan, as defined in s. 301.328 (1).

AB768,299,20 (d) If any money remains after the payments under pars. (a) to (c), request that the department of corrections make a reasonable effort to notify any victims of the crime for which the prisoner was convicted and imprisoned, incarcerated or confined of the pending payment of a monetary award to the prisoner. The department of corrections shall inform the court of whether any victims were notified. The court shall withhold any payment to the prisoner under par. (e) for a reasonable time after the department of corrections notifies the court that a victim was notified so that the victim may have time to petition the court regarding payments to that victim from the remaining money.

AB768,299,22 (e) Order that any money remaining after all payments are made under pars. (a) to (d) be paid to the prisoner.

AB768, s. 657 Section 657. 807.04 of the statutes is renumbered 807.04 (1) and amended to read:

AB768,300,4 807.04 (1) All Except as provided under sub. (2), all trials, and all hearings at which oral testimony is to be presented, shall be held in open court. The court may make any order which a judge or court commissioner has power to make. Court commissioners shall have the powers provided in ch. 753 or by other statute.