AB768: Bill Text

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.

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: