AB768: Bill Text

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:

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: