SB464: Bill Text

LRB-4065/1

RPN&PJH:jld:ph

2009 - 2010 LEGISLATURE

2009 Senate BILL 464

January 22, 2010 - Introduced by Senators Taylor, Erpenbach, Robson, Darling, Lassa, Risser, Hansen, A. Lasee, Coggs and Olsen, cosponsored by Representatives Hraychuck, Parisi, Roys, Staskunas, Dexter, Suder, Berceau, Turner, Danou, Van Roy, Kaufert, Townsend, Milroy, Sinicki, Bies and A. Williams. Referred to Committee on Judiciary, Corrections, Insurance, Campaign Finance Reform, and Housing.

SB464,1,8 An Act to renumber 757.69 (8); to renumber and amend 813.125 (2); to amend 813.06, 813.12 (2) (a), 813.12 (3) (aj), 813.12 (3) (c), 813.12 (4) (aj), 813.12 (5m), 813.122 (2), 813.123 (2) (a), 813.125 (3) (c) and 813.125 (5m); and to create 757.69 (8) (b), 767.338, 813.12 (5) (a) 4., 813.12 (5g), 813.122 (6) (a) 5., 813.123 (6) (d), 813.125 (2) (b), 813.125 (2g), 813.125 (2m), 813.125 (3) (d), 813.125 (3) (e), 813.125 (4) (aj), 813.125 (5) (a) 4., 813.125 (5g) (c), 813.125 (5g) (d) and 813.126 of the statutes; relating to: temporary restraining orders and injunctions.

Analysis by the Legislative Reference Bureau

This bill makes numerous changes in the laws concerning petitions for temporary restraining orders and injunctions related to domestic abuse, child abuse, adult at risk, or harassment.

Under current law, if a person wants a judge to review a decision of a circuit court commissioner, the person submits a motion to the circuit court asking for a hearing before the judge. The court conducts a de novo hearing in which the judge hears all of the evidence and arguments and makes a decision without regard to the commissioner's decision. Under this bill, a party seeking judicial review of a circuit court commissioner's decision regarding a petition for a domestic abuse, child abuse, adult-at-risk, or harassment temporary restraining order or injunction must file the motion with the court within 30 days after the court commissioner's decision. The bill requires the judge to hold the hearing on that motion within 15 working days after the hearing is requested.

The bill prohibits a circuit court in an action affecting the family, such as a divorce action, to enter any order that conflicts with an order entered by a circuit court regarding a temporary restraining order or injunction for domestic abuse, child abuse, adult at risk, or harassment; with a contact prohibition issued in conjunction with a domestic abuse criminal action; or with a condition of probation, parole, extended supervision, or release.

The bill requires the circuit court to inform the petitioner of the agency that the person should contact to verify that the petition for a temporary restraining order or injunction for domestic abuse, child abuse, adult at risk, or harassment has been served on the respondent. Currently the circuit court judge or commissioner is prohibited from dismissing or denying a domestic abuse temporary restraining order or injunction because of the existence of a pending action or any court order that bars contact between the parties. The bill expands that prohibition to include any civil or criminal court order that includes provisions regarding contact between the parties.

The bill requires a petitioner seeking a domestic abuse, child abuse, adult-at-risk, or harassment temporary restraining order or injunction to include in the petition identifying information about any other civil or criminal court proceeding that has a court order that includes provisions regarding contact with the person who is the subject of the petition (respondent).

The bill allows the circuit court to approve a stipulation to convert a domestic abuse petition to a harassment petition only if, on the record, one or both parties request the conversion, the court explains the differences between a harassment and domestic abuse injunction, and the court includes an explanation as to why granting a domestic abuse temporary restraining order or injunction is not appropriate.

The bill provides the same procedure for the service of a petition upon the respondent in an action for a harassment temporary restraining order or injunction as is provided in an action for a domestic abuse temporary restraining order or injunction. The bill also provides parallel language in the statutes regarding the procedure for bringing an action for a harassment temporary restraining order or injunction, providing advice regarding service of the petition on the respondent, limiting the remedies to those petitioned for, and for ordering the sheriff to assist the petitioner in his or her residence as is provided in an action for a domestic abuse temporary restraining order or injunction.

Under the bill, a person under the age of 18, or the parent, stepparent, or legal guardian of the person may petition for a harassment temporary restraining order or injunction and the court may appoint a guardian ad litem for a child who is a petitioner.

The bill requires the clerk of circuit court to provide a person who contacts the circuit court about filing a petition for temporary restraining orders and injunctions for domestic abuse, child abuse, adult at risk, or harassment, with a document prepared by the director of state courts. The bill requires the document to describe the different types of temporary restraining orders and injunctions, who is eligible, the remedies available for each, and the process necessary to obtain one of the temporary restraining orders or injunctions. The director of state courts is required to provide sufficient copies to the courts without charge.

Under the bill, the circuit court is required to review and rule on a petition for a temporary restraining order for domestic abuse, child abuse, adult at risk, or harassment within two business hours after receipt of the petition. If the court is unable to do so, the bill requires the clerk of circuit court to make arrangements for another court to review the petition within the two-hour period. If the court denies the petition, the bill requires the court to file a written record of the denial that includes the name of the petitioner and the reason for the denial, and to provide the petitioner with a copy of that denial.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB464, s. 1 Section 1. 757.69 (8) of the statutes is renumbered 757.69 (8) (a).

SB464, s. 2 Section 2. 757.69 (8) (b) of the statutes is created to read:

SB464,3,9 757.69 (8) (b) If a party seeks to have the judge conduct a hearing de novo of a determination, order, or ruling entered in an action under s. 813.12, 813.122, 813.123, or 813.125, including a denial of a request for a temporary restraining order, the motion requesting the hearing must be filed with the court within 30 working days after the circuit court commissioner issued the determination, order, or ruling and the court shall hold the de novo hearing within 15 working days after the motion requesting the hearing is filed with the court.

SB464, s. 3 Section 3. 767.338 of the statutes is created to read:

SB464,4,2 767.338 Conflict with temporary restraining orders, injunctions, or contact prohibitions. Notwithstanding any other provision of this chapter, the court may not enter an order under this chapter that conflicts with an order entered under s. 813.12, 813.122, 813.123, or 813.125, with the contact prohibition under s. 968.075 (5), or with a condition of probation, parole, extended supervision, or release.

SB464, s. 4 Section 4. 813.06 of the statutes is amended to read:

SB464,4,12 813.06 Security for damages. In proceedings under s. 767.225 the court or judge may, and in all other proceedings except proceedings under ss. 813.12, 813.122, 813.123, 813.125, and 823.113 the court or judge shall, require a bond of the party seeking an injunction, with sureties, to the effect that he or she will pay to the party enjoined such damages, not exceeding an amount to be specified, as he or she may sustain by reason of the injunction if the court finally decides that the party was not entitled thereto. Copies of such bond, affidavit or other pleading shall be served upon the party enjoined and the officer serving the same shall, within 8 days after such service, file his or her return in the office of the clerk of the court.

SB464, s. 5 Section 5. 813.12 (2) (a) of the statutes is amended to read:

SB464,5,7 813.12 (2) (a) No action under this section may be commenced by complaint and summons. An action under this section may be commenced only by a petition described under sub. (5) (a). The action commences with service of the petition upon the respondent if a copy of the petition is filed before service or promptly after service. If the judge or a circuit court commissioner extends the time for a hearing under sub. (3) (c) and the petitioner files an affidavit with the court stating that personal service by the sheriff or a private server under s. 801.11 (1) (a) or (b) was unsuccessful because the respondent is avoiding service by concealment or otherwise, the judge or circuit court commissioner shall inform the petitioner that he or she may serve the respondent by publication of a summary of the petition as a class 1 notice, under ch. 985, and by mailing or sending a facsimile if the respondent's post-office address or facsimile number is known or can with due diligence be ascertained. The mailing or sending of a facsimile may be omitted if the post-office address or facsimile number cannot be ascertained with due diligence. A summary of the petition published as a class 1 notice shall include the name of the respondent and of the petitioner, notice of the temporary restraining order, and notice of the date, time, and place of the hearing regarding the injunction. The court shall inform the petitioner in writing as to which agency the petitioner should contact to verify the proof of service of the petition.

SB464, s. 6 Section 6. 813.12 (3) (aj) of the statutes is amended to read:

SB464,5,18 813.12 (3) (aj) In determining whether to issue a temporary restraining order, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested or approved by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting a temporary restraining order because of the existence of a pending action or of any other civil or criminal court order that bars includes provisions regarding contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

SB464, s. 7 Section 7. 813.12 (3) (c) of the statutes is amended to read:

SB464,6,3 813.12 (3) (c) The temporary restraining order is in effect until a hearing is held on issuance of an injunction under sub. (4). The temporary restraining order is not voided if the respondent is admitted into a dwelling that the order directs him or her to avoid. A judge or circuit court commissioner shall hold a hearing on issuance of an injunction within 14 days after the temporary restraining order is issued, unless the time is extended upon the written consent of the parties motion of the petitioner or extended once for 14 days upon a finding that the respondent has not been served with a copy of the temporary restraining order although the petitioner has exercised due diligence.

SB464, s. 8 Section 8. 813.12 (4) (aj) of the statutes is amended to read:

SB464,6,14 813.12 (4) (aj) In determining whether to issue an injunction, the judge or circuit court commissioner shall consider the potential danger posed to the petitioner and the pattern of abusive conduct of the respondent but may not base his or her decision solely on the length of time since the last domestic abuse or the length of time since the relationship ended. The judge or circuit court commissioner may grant only the remedies requested by the petitioner. The judge or circuit court commissioner may not dismiss or deny granting an injunction because of the existence of a pending action or of any other civil or criminal court order that bars includes provisions regarding contact between the parties, nor due to the necessity of verifying the terms of an existing court order.

SB464, s. 9 Section 9. 813.12 (5) (a) 4. of the statutes is created to read:

SB464,6,19 813.12 (5) (a) 4. If the petitioner knows of any other civil or criminal court proceeding in which the petitioner is a party to a court order or judgment that includes provisions regarding contact with the respondent, any of the following that are known by the petitioner:

SB464,6,20 a. The name or type of the court proceeding.

SB464,6,21 b. The date of the court proceeding.

SB464,6,23 c. The types of provisions regarding contact between the petitioner and respondent.

SB464, s. 10 Section 10. 813.12 (5g) of the statutes is created to read:

SB464,7,4 813.12 (5g) Stipulation. If the parties enter into a stipulation to convert a petition under this section to a petition for a temporary restraining order or injunction under s. 813.125, the court may not approve that stipulation unless all of the following occur:

SB464,7,6 (a) Either or both parties submit an oral request on the record for the conversion explaining why the conversion of the petition is requested.

SB464,7,7 (b) The court informs the petitioner on the record of all of the following:

SB464,7,9 1. The requirements for granting a domestic abuse injunction as specified under sub. (4) (a).

SB464,7,10 2. The definition of domestic abuse under sub. (1) (am).

SB464,7,12 3. The requirements for granting a harassment injunction as specified under s. 813.125 (4) (a).

SB464,7,13 4. The definition of harassment under s. 813.125 (1).

SB464,7,15 5. The amount of time that a domestic abuse injunction shall be in effect if granted is the amount of time that the petitioner requests under sub. (4) (c).