AB768: Bill Text

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.

AB768, s. 658 Section 658. 807.04 (2) of the statutes is created to read:

AB768,300,15 807.04 (2) All hearings in which oral testimony is to be presented in an action or special proceeding that is commenced by a prisoner, as defined in s. 801.02 (7) (a) 2., shall be conducted by telephone, interactive video and audio transmission or other live interactive communication without removing him or her from the facility or institution if his or her participation is required or permitted and if the official having custody of him or her agrees. The court in which the action or special proceeding is commenced shall, when feasible, also allow counsel, witnesses and other necessary persons to participate in the hearing by telephone, interactive video and audio transmission or other live interactive communication. The procedures and policies under s. 807.13 shall apply to the extent feasible.

AB768, s. 659 Section 659. 807.15 of the statutes is created to read:

AB768,300,18 807.15 Penalty for certain actions by prisoners. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,300,24 (2) In any action or special proceeding, including a petition for a common law writ of certiorari, brought by a prisoner, the court may, on its own motion or on the motion of any party, order the department of corrections to extend the prisoner's mandatory release date calculated under s. 302.11 (1) or order the sheriff to deprive the prisoner of good time under s. 302.43 if the court finds that any of the following applies:

AB768,300,25 (a) The action or special proceeding was filed for a malicious purpose.

AB768,301,2 (b) The action or special proceeding was filed solely to harass the party against which it was filed.

AB768,301,4 (c) The prisoner testifies falsely or otherwise knowingly offers false evidence or provides false information to the court.

AB768,301,8 (3) (a) Subject to par. (b), if a court orders the department of corrections to extend a prisoner's mandatory release date or orders the sheriff to deprive the prisoner of good time under sub. (2), the order shall specify the number of days by which the mandatory release date is to be extended or the good time deprived.

AB768,301,11 (b) An order under sub. (2) to extend a prisoner's mandatory release date or deprive a prisoner of good time may not require the prisoner to serve more days than provided for under the prisoner's sentence.

AB768,301,13 (4) This section applies to prisoners who committed an offense on or after the effective date of this subsection .... [revisor inserts date].

AB768, s. 660 Section 660. 808.04 (5) of the statutes is repealed.

AB768, s. 661 Section 661. 809.103 of the statutes is created to read:

AB768,301,17 809.103 Appeals in proceedings related to prisoners. (1) In this section, "prisoner" has the meaning given in s. 801.02 (7) (a) 2.

AB768,301,19 (2) (a) An appellate court shall review the trial court record as soon as practicable after the record is filed with the court if the appeal is taken by a prisoner.

AB768,301,22 (b) The appellate court may dismiss the appeal without requiring the respondent to respond to the appeal if the appellate court determines that the appeal meets any of the following conditions:

AB768,301,23 1. Is frivolous, as determined under s. 814.025 (3).

AB768,301,25 2. Is used for any improper purpose, such as to harass, to cause unnecessary delay or to needlessly increase the cost of litigation.

AB768,302,2 3. Seeks review of a denial of monetary damages from a defendant who is immune from such relief.

AB768,302,3 4. There is no ground upon which relief may be granted.

AB768,302,6 (c) If a court dismisses an appeal under par. (b), the appellate court shall notify the department of justice of the dismissal by a procedure developed by the director of state courts in cooperation with the department of justice.

AB768,302,8 (d) The dismissal of an appeal under par. (b) does not relieve the prisoner from paying the full filing fee related to the appeal.

AB768, s. 662 Section 662. 813.02 (1) (c) of the statutes is created to read:

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.