2017 - 2018 LEGISLATURE
October 19, 2017 - Introduced by Representatives Kooyenga, Hebl, Anderson,
Berceau, Crowley, Edming, Fields, Goyke, Hintz, Jarchow, Kleefisch,
Kolste, Kremer, Krug, Mursau, Novak, Petryk, Pope, Quinn, Rohrkaste,
Sargent, Sinicki, Spreitzer, C. Taylor, Tittl, Vruwink and Young,
cosponsored by Senators Wanggaard, Risser, L. Taylor, Bewley, Darling,
Johnson, Miller and Ringhand. Referred to Committee on State Affairs.
1An Act to renumber
893.57; to renumber and amend
775.05 (2); to amend
20.505 (4) (d), 40.51 (1), 227.03 (5), 775.05 (3) and (4) and 775.05 (5); and to
20.515 (1) (ds), 20.515 (1) (g), 40.516, 71.05 (6) (b) 53., 227.43 (1) (bw), 4
301.051, 775.05 (2) (b) and (c) and (2m), 775.05 (4c), 775.05 (4d), 775.05 (4g) and 5
(4h), 775.05 (4m) and (4r), 808.085, 893.57 (2), 977.05 (4) (jr) and 977.05 (4) (jw) 6
of the statutes; relating to: claims by and treatment of wrongfully imprisoned
7persons and making appropriations.
Analysis by the Legislative Reference Bureau
This bill does the following: 1) makes changes to the requirements for claims
for state compensation by wrongfully imprisoned persons; and 2) provides health
care coverage and other assistance for such persons. Except as noted below, the bill
initially applies with respect to claims filed by persons who are released on or after
January 1, 1990, from imprisonment for crimes of which they claim to be innocent.
Requirements for claims. Currently, the state claims board is directed to
hear petitions for compensation by persons who are released from imprisonment for
crimes of which they claim to be innocent. The board must find either that the
evidence is clear and convincing that the petitioner was innocent of the crime for
which he or she was imprisoned or that the evidence is not clear and convincing that
he or she was innocent. If the board finds that the petitioner was innocent and that
he or she did not by his or her act or failure to act contribute to bring about the
conviction and imprisonment for which he or she seeks compensation, the board
must award the petitioner compensation not to exceed $25,000 total nor more than
$5,000 for each year of imprisonment. This amount includes any expenses for
attorney fees, costs, and disbursements incurred by the petitioner. Any award is paid
from state general purpose revenues. If the board determines that it is not able to
award an adequate compensation, the board must submit a report to the legislature
specifying the amount that it considers to be adequate.
This bill provides that when the claims board receives a claim for wrongful
imprisonment filed by a petitioner who has been released from imprisonment and
who claims to be innocent of the crime for which he or she was imprisoned, the board
must refer the petition to the Division of Hearings and Appeals in the Department
of Administration. The bill then allows either DOA or the office of the prosecutor who
prosecuted the petitioner to file a written request with the claims board for a hearing
within 30 days after the original petition is filed with the board. If a timely request
for a hearing is filed, or if the division concludes that it cannot determine the
petitioner's eligibility for compensation without a hearing, the division must hold a
hearing within 60 days after the petition is filed. If a timely request for a hearing
is not filed and the division is able to determine that the petitioner is eligible for
compensation without a hearing, the division must decide the matter without a
hearing, except that the division must afford a petitioner an opportunity for a
hearing before denying compensation to the petitioner. If a hearing is held, the bill
allows the petitioner to be represented by a public defender. If a hearing is held, the
division appoints a hearing examiner to hear the petition. If no hearing is held, the
division decides the matter without a hearing.
The hearing examiner makes findings and issues a decision concerning
whether the petitioner is entitled to compensation. Under the bill, the findings must
be based upon the preponderance of evidence (a lesser evidentiary standard than
clear and convincing evidence). The petitioner need not show that he or she did not
by his or her act or failure to act contribute to bring about the conviction and
imprisonment for which he or she seeks compensation.
If the hearing examiner's finding is in the affirmative, the examiner must
transmit its findings to the claims board, which shall award compensation to the
petitioner in an amount that the board considers to be adequate and the board must
pay that amount to the petitioner. Under the bill, the amount of compensation is
fixed at a rate of $50,000 per year, prorated daily, with a $1,000,000 limit on the total
amount of an award. In addition, subject to the $1,000,000 limit, each award must
include reimbursement for reasonable, actual attorney fees, together with all costs
and disbursements incurred by the petitioner in his or her defense, postconviction,
and compensation proceedings and all fees, surcharges, and restitution paid by the
petitioner as a result of his or her arrest and imprisonment. The $50,000 annual rate
is subject to annual adjustments based on changes in the cost of living. The bill
requires the board to make, every five years, a recommendation to the legislature as
to whether the $1,000,000 limit should be changed.
The bill provides that no person may file a claim for wrongful imprisonment,
or be paid an award for wrongful imprisonment, as a result of a conviction resulting
in imprisonment for a crime if the imprisoned person is also imprisoned for a
conviction for a felony arising from the same course of conduct that resulted in
conviction for the crime of which the person claims to be innocent if the person does
not claim to be innocent of that felony or if the imprisoned person is convicted of a
violent crime, specified in this bill, after his or her release from imprisonment.
The bill also provides that, with certain exceptions, a surviving spouse or
domestic partner, child, parent, or sibling of a person who is entitled to compensation
for wrongful imprisonment but who does not receive payment of an award may,
within one year of the death of that person, file or pursue on behalf of the deceased
person a claim for wrongful imprisonment. Under the bill, any payment that would
have been payable to the deceased person then becomes payable to the individual
who files or pursues the claim, except that if that person is entitled only under the
law governing inheritances to inherit a portion of the estate of a deceased person, the
individual may receive only the same portion of the payment. Any compensation is
independent of any rights that a claimant or any other person may have to inherit
assets under any will of the decedent.
The bill also creates requirements that apply if a person who petitions for
compensation obtains any settlement, judgment, or award against a third party in
a federal or state action for damages related to wrongful imprisonment for the crime
that is the subject of the petition. If a person obtains such a settlement, judgment,
or award in such an action before the claims board pays a claim, the claims board
must subtract the amount of the judgment, settlement, or award from the
compensation. The bill also provides that for any petition filed on or after the
effective date of the bill, the petitioner automatically assigns to the claims board the
petitioner's right to any settlement, judgment, or award obtained against a third
party in such an action. The bill specifies that the assignment is a condition of
eligibility to receive compensation from the claims board. Also, the assignment is
considered to be a statutory lien on the settlement, judgment, or award. The amount
of the lien is equal to the amount of the settlement, judgment, or award, or the
amount of compensation awarded by the claims board, whichever is less.
The bill also provides that if a person who is awarded compensation owes money
for outstanding restitution, court fees, and fines (collectively deductions) related to
any conviction that remains in place and is not subject to a finding of innocence, the
claims board must withhold and deduct from the compensation award any such
money that is owed. The bill requires the prosecutor of such convictions to provide
the claims board with an accounting of all unpaid deductions, and the claims board
must distribute the deductions to the person to whom they are owed.
This bill also extends the statute of limitations for a civil claim for damages
brought by a person who was injured because of an intentional tort that resulted in
an earlier criminal conviction of the person who has received compensation for
wrongful imprisonment for a later crime. Under current law, an injured person must
bring a claim for damages due to an intentional tort within three years after the
cause of action accrues or be barred. Under the bill, an injured person may bring a
claim within three years, or within one year after a defendant receives compensation
for wrongful imprisonment, whichever is later. If the injured person brings his or her
claim more than three years after the cause of action accrues but within one year
after the defendant receives compensation for wrongful imprisonment, the damages
awarded due to the tort may not exceed 50 percent of the total compensation received
for wrongful imprisonment.
In addition, the bill exempts from taxation the payments that an individual, or
his or her estate, receives from the claims board or from the state legislature as a
result of claims board action, or from the state as payment for the individual's health
Health care coverage and other assistance. Under current law, the Group
Insurance Board, attached to the Department of Employee Trust Funds, contracts
on behalf of the state for the purpose of providing health care coverage to state
employees. This bill permits individuals who receive compensation from the state
for wrongful imprisonment and who are not eligible to obtain health care coverage
from an employer to elect, for up to five years, health care coverage under plans
offered by the Group Insurance Board to state employees beginning on January 1,
2019. Under the bill, these individuals would be required to pay the same health
insurance premium amounts that state employees are required to pay, with the
balance of the premium cost paid by the state. During the time before January 1,
2019, this bill makes these individuals eligible for health care benefits through the
Medical Assistance program BadgerCare Plus, if the federal government does not
disapprove of the Department of Health Services providing Medical Assistance to
Under the bill, if a person's conviction for a crime is reversed, set aside, or
vacated on grounds consistent with the person's innocence, and the person is ordered
released from prison by a trial court, the court must grant the person, upon request,
temporary financial assistance, transition assistance from the Department of
Corrections and local aid agencies, and sealing of all records related to his or her
conviction. If the person pursues a successful petition for wrongful imprisonment,
any temporary financial assistance he or she received upon release from prison is
subtracted from any compensation he or she receives for wrongful imprisonment.
Because this bill relates to an exemption from state or local taxes, it may be
referred to the Joint Survey Committee on Tax Exemptions for a report to be printed
as an appendix to the bill.
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:
20.505 (4) (d) of the statutes is amended to read:
(d) Claims awards.
A sum sufficient for payment of awards made 2
by the claims board or department of administration under ss. 16.007, 775.05 (4), 3
775.06 and 775.11, awards of financial assistance under s. 808.085,
and awards made 4
by an act of the legislature arising from a claim filed with the claims board which are 5
not directed by law or under s. 16.007 (6m) to be paid from another appropriation.
20.515 (1) (ds) of the statutes is created to read:
(ds) Payment of health insurance premiums for individuals who
8receive compensation for wrongful imprisonment.
A sum sufficient to pay the state's 9
share of premium costs for health care benefits and the cost of administering the 10
benefits for individuals under s. 40.516.
20.515 (1) (g) of the statutes is created to read:
(g) Benefit and coverage payments; health care coverage for
13individuals who receive compensation for wrongful imprisonment.
All moneys 14
received from individuals under s. 40.516 who elect to be included in a health care 15
coverage plan under s. 40.51 (6), for the payment of benefits and the cost of 16
administering benefits for the individuals.
40.51 (1) of the statutes is amended to read:
The procedures and provisions pertaining to enrollment, premium 19
transmitted and coverage of eligible employees and individuals eligible for health
20care coverage under s. 40.516
for health care benefits shall be established by contract 21
or rule except as otherwise specifically provided by this chapter.
40.516 of the statutes is created to read:
2340.516 Health care coverage for individuals who receive
24compensation for wrongful imprisonment. (1)
Beginning on January 1, 2019, 25
any individual who receives compensation under s. 775.05 after the effective date of
this subsection .... [LRB inserts date], may elect coverage under any health care 2
coverage plan offered under s. 40.51 (6) for a period equal to the time he or she was 3
imprisoned, but not to exceed 5 years. An individual who is eligible to obtain health 4
care coverage offered by his or her employer or by the employer of his or her spouse 5
may not elect or continue coverage under this subsection.
The individual and the state shall jointly pay the full premium cost of health 7
care coverage and the cost of administering the benefits under sub. (1). The amount 8
that the individual must pay in health insurance premiums shall equal the amount 9
required to be paid by state employees, as determined by the administrator of the 10
division of personnel management in the department of administration under s. 11
40.05 (4) (ah). The remainder of the premium cost for health care coverage for these 12
individuals shall be paid from the appropriation account under s. 20.515 (1) (ds).
71.05 (6) (b) 53. of the statutes is created to read:
(b) 53. Any amount received by an individual, or the individual's 15
estate, from the claims board under s. 775.05 (4), from the legislature under the 16
process described in s. 775.05 (4), from the state as a result of the state's payment of 17
an individual's premium costs under s. 40.516 (2) to the extent that the amount is 18
recognized by the individual as income, or from a financial assistance award granted 19
under s. 808.085, in the taxable year that relates to the year in which the payment 20
227.03 (5) of the statutes is amended to read:
This chapter does not apply to proceedings of the claims board, 23
except as provided in ss. 775.05 (5),
775.06 (7) and 775.11 (2), and except that
24proceedings under s. 775.05 are subject to this chapter, unless otherwise provided in
227.43 (1) (bw) of the statutes is created to read:
(bw) Assign a hearing examiner to preside over each hearing 3
conducted under s. 775.05.
301.051 of the statutes is created to read:
5301.051 Wrongful imprisonment; transition plan.
Not more than 5 days 6
after a court issues an order under s. 808.085 (1) (a) for a plan requested by an 7
inmate, the department shall create a transition to release plan for the inmate. The 8
plan shall do all of the following:
Provide the inmate with a written list of community resources available to 10
the inmate upon his or her release from prison, including temporary housing and 11
emergency shelters, food banks, education and job assistance, and health care 12
services in the county into which the inmate will be released. The department shall 13
maintain up-to-date lists with contact information for each county in the state.
Provide the inmate with an individual counseling session with a person 15
trained by the department or the county into which the inmate will be released to 16
assist inmates in the transition to release from prison.
Schedule an appointment, set for not later than 2 weeks after the inmate's 18
date of release, for the inmate to meet with a social worker or aid program 19
administrator for the county into which the inmate will be released.
775.05 (2) of the statutes is renumbered 775.05 (2) (a) and 21
amended to read:
(a) Any Except as provided in pars. (b) and (c), any
person who is 23
imprisoned as the result of his or her conviction for a crime in any court of this state, 24
of which crime the person claims to be innocent, and who is released from 25
imprisonment for that crime after March 13, 1980, may petition the claims board for
compensation for such imprisonment. Upon
Within 5 days after
receipt of the 2
petition, the claims board department of administration
shall transmit a copy 3
thereof to the prosecutor who prosecuted the petitioner and the judge who sentenced 4
the petitioner for the conviction which is the subject of the claim, or their successors 5
in office, for the information of these persons.
775.05 (2) (b) and (c) and (2m) of the statutes are created to read: