AB768: Bill Text

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AB768,310,17 (i) Except as provided in par. (f), the court shall deny a prisoner's request for leave to commence any action or special proceeding under this subsection, including a petition for a common law writ of certiorari, if that prisoner has, on 2 or more occasions, while he or she was incarcerated, imprisoned, confined or detained in a jail or prison, brought an appeal, writ of error, action or special proceeding under this section, including a petition for a common law writ of certiorari, that was dismissed by a state or federal court for any of the reasons listed in s. 802.05 (3) (b) 1. to 4.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AB768, s. 683 Section 683. 938.27 (3) (a) 1m. of the statutes is created to read:

AB768,316,18 938.27 (3) (a) 1m. The court shall give a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who is notified of a hearing under subd. 1. an opportunity to be heard at the hearing by permitting the foster parent, treatment foster parent or other physical custodian to make a written or oral statement during the hearing, or to submit a written statement prior to the hearing, relevant to the issues to be determined at the hearing. A foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) who receives a notice of a hearing under subd. 1. and an opportunity to be heard under this subdivision does not become a party to the proceeding on which the hearing is held solely on the basis of receiving that notice and opportunity to be heard.

AB768, s. 684 Section 684. 938.27 (3) (a) 2. of the statutes is amended to read:

AB768,317,4 938.27 (3) (a) 2. Failure to give notice under subd. 1. to a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) does not deprive the court of jurisdiction in the action or proceeding. If a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2) is not given notice of a hearing under subd. 1. and if the court is required under this chapter to permit that person to make a written or oral statement at the hearing or to submit a written statement prior to the hearing and that person does not make or submit such statement, that person may request a rehearing on the matter during the pendency of an order resulting from the hearing. If the request is made, the court shall order a rehearing.

AB768, s. 685 Section 685. 938.27 (6) of the statutes is amended to read:

AB768,317,12 938.27 (6) When a proceeding is initiated under s. 938.14, all interested parties shall receive notice and appropriate summons shall be issued in a manner specified by the court, consistent with applicable governing statutes. In addition, if the juvenile who is the subject of the proceeding is in the care of a foster parent, treatment foster parent or other physical custodian described in s. 48.62 (2), the court shall give the foster parent, treatment foster parent or other physical custodian notice and an opportunity to be heard as provided in sub. (3) (a).

AB768, s. 686 Section 686. 938.296 (6) of the statutes is amended to read:

AB768,317,18 938.296 (6) The court may order the county to pay for the cost of a test or series of tests ordered under sub. (4). This subsection does not prevent recovery of reasonable contribution toward the cost of that test or series of tests from the parent or guardian of the juvenile as the court may order based on the ability of the parent or guardian to pay. This subsection is subject to s. 46.03 301.03 (18).

AB768, s. 687 Section 687. 938.30 (6) of the statutes, as affected by 1997 Wisconsin Acts 27 and 35, is repealed and recreated to read:

AB768,318,11 938.30 (6) If a petition is not contested, the court shall set a date for the dispositional hearing which allows reasonable time for the parties to prepare but is no more than 10 days from the plea hearing for a juvenile who is held in secure custody and no more than 30 days from the plea hearing for a juvenile who is not held in secure custody. If it appears to the court that disposition of the case may include placement of the juvenile outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under s. 938.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under s. 49.22 (9) and listing the factors that a court may consider under s. 301.12 (14) (c). If all parties consent the court may proceed immediately with the dispositional hearing. If a citation is not contested, the court may proceed immediately to enter a dispositional order.

AB768, s. 688 Section 688. 938.31 (7) of the statutes, as affected by 1997 Wisconsin Acts 27 and 35, is repealed and recreated to read:

AB768,319,3 938.31 (7) At the close of the fact-finding hearing, the court shall set a date for the dispositional hearing which allows a reasonable time for the parties to prepare but is no more than 10 days after the fact-finding hearing for a juvenile in secure custody and no more than 30 days after the fact-finding hearing for a juvenile not held in secure custody. If it appears to the court that disposition of the case may include placement of the juvenile outside the juvenile's home, the court shall order the juvenile's parent to provide a statement of income, assets, debts and living expenses to the court or the designated agency under s. 938.33 (1) at least 5 days before the scheduled date of the dispositional hearing or as otherwise ordered by the court. The clerk of court shall provide, without charge, to any parent ordered to provide a statement of income, assets, debts and living expenses a document setting forth the percentage standard established by the department of workforce development under s. 49.22 (9) and listing the factors that a court may consider under s. 301.12 (14) (c). If all parties consent, the court may immediately proceed with a dispositional hearing.

AB768, s. 689 Section 689. 938.33 (4m) (intro.) of the statutes is amended to read:

AB768,319,10 938.33 (4m) Support recommendations; information to parents. (intro.) In making a recommendation for an amount of child support under sub. (3) or (4), the agency shall consider the factors that the court considers under s. 46.10 301.12 (14) (c) for deviation from the percentage standard. At or before the dispositional hearing under s. 938.335, the agency shall provide the juvenile's parent with all of the following:

AB768, s. 690 Section 690. 938.33 (4m) (b) of the statutes is amended to read:

AB768,319,13 938.33 (4m) (b) A written explanation of how the parent may request that the court modify the amount of child support under s. 46.10 301.12 (14) (c).

AB768, s. 691 Section 691. 938.355 (2) (b) 6. of the statutes is amended to read:

AB768,319,23 938.355 (2) (b) 6. If the juvenile is placed outside the home and if sub. (2d) does not apply, the court's finding as to whether a county department which provides social services or the agency primarily responsible for the provision of providing services under a court order has made reasonable efforts to prevent the removal of the juvenile from the home, while assuring that the juvenile's health and safety are the paramount concerns, or, if applicable, that the court's finding as to whether the agency primarily responsible for the provision of providing services under a court order has made reasonable efforts to make it possible for the juvenile to return safely to his or her home.

AB768, s. 692 Section 692. 938.355 (2b) of the statutes is created to read:

AB768,320,8 938.355 (2b) Concurrent reasonable efforts permitted. A county department that provides social services or the agency primarily responsible for providing services to a juvenile under a court order may, at the same time as the county department or agency is making the reasonable efforts required under sub. (2) (b) 6., work with the department of health and family services, a county department under s. 48.57 (1) (e) or (hm) or a child welfare agency licensed under s. 48.61 (5) in making reasonable efforts to place the juvenile for adoption, with a guardian or in some other alternative permanent placement.

AB768, s. 693 Section 693. 938.355 (2c) (a) (intro.) of the statutes is amended to read:

AB768,320,16 938.355 (2c) (a) (intro.) When a court makes a finding under sub. (2) (b) 6. as to whether a county department which provides social services or the agency primarily responsible for providing services to the juvenile under a court order has made reasonable efforts to prevent the removal of the juvenile from his or her home, while assuring that the juvenile's health and safety are the paramount concerns, the court's consideration of reasonable efforts shall include, but not be limited to, whether:

AB768, s. 694 Section 694. 938.355 (2c) (a) 1. of the statutes is amended to read:

AB768,320,20 938.355 (2c) (a) 1. A comprehensive assessment of the family's situation was completed, including a determination of the likelihood of protecting the juvenile's health, safety and welfare effectively in the home.

AB768, s. 695 Section 695. 938.355 (2c) (b) of the statutes is amended to read:

AB768,321,3 938.355 (2c) (b) When a court makes a finding under sub. (2) (b) 6. as to whether the agency primarily responsible for providing services to the juvenile under a court order has made reasonable efforts to make it possible for the juvenile to return safely to his or her home, the court's consideration of reasonable efforts shall include, but not be limited to, the considerations listed under par. (a) 1. to 5. and whether visitation schedules between the juvenile and his or her parents were implemented, unless visitation was denied or limited by the court.

AB768, s. 696 Section 696. 938.355 (2d) of the statutes is created to read: