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LRB-6076/1
ALL:all
2017 - 2018 LEGISLATURE
December 3, 2018 - Introduced by Joint Committee on Finance. Referred to Joint
Committee on Finance.
SB884,2,8 1An Act to repeal 16.84 (5) (d), 165.055 (3), 227.20 (3) (c), 227.46 (3) (a), 227.46
2(8), 230.08 (2) (sb) and 238.399 (3) (e); to renumber 227.138 (1) (a) to (h); to
3renumber and amend
13.90 (3), 15.165 (2), 165.08, 165.25 (6) (a), 227.135 (2),
4227.135 (4), 227.137 (3) (e), 227.138 (1) (intro.), 227.40 (3) (intro.), 227.40 (3) (a)
5and 343.50 (1) (c); to amend 5.02 (6m) (f), 13.56 (2), 13.90 (2), 13.91 (1) (c),
620.455 (1) (gh), 20.455 (2) (gb), 20.455 (3) (g), 45.57, 165.10, 165.25 (1), 165.25
7(1m), 227.01 (13) (intro.), subchapter II (title) of chapter 227 [precedes 227.10],
8227.11 (title), 227.13, 227.135 (3), 227.137 (2), 227.137 (4), 227.138 (2), 227.185,
9227.20 (3) (a), 227.24 (1) (e) 1d., 227.24 (1) (e) 1g., 227.40 (1), 227.40 (2) (intro.),
10227.40 (2) (e), 227.40 (3) (b) and (c), 227.40 (4) (a), 227.40 (6), 227.46 (1) (h),
11227.46 (2), 227.46 (2m), 227.47 (1), 227.57 (11), 238.02 (1), 238.02 (2), 238.02 (3),
12238.399 (3) (a), 281.665 (5) (d), 343.50 (3) (b), 801.50 (3) (b), 806.04 (11), 809.13
13and subchapter VIII (title) of chapter 893 [precedes 893.80]; and to create
1413.103, 13.124, 13.127, 13.365, 13.48 (24m), 13.90 (3) (a) and (b), 15.07 (1) (b)

124., 15.165 (2) (d) and (f) to (i), 16.42 (5), 16.84 (2m), 16.973 (15), 35.93 (2) (b)
23. im., 165.07, 227.01 (3m), 227.05, 227.10 (2g), 227.11 (3), 227.112, 227.135 (1)
3(g), 227.135 (1) (h), 227.135 (2) (a) 2., 227.135 (4) (a) 1. to 6., 227.135 (6), 227.137
4(2m), 227.137 (3) (e) 1. to 4., 227.137 (3m), 227.138 (1g), 227.18 (3m), 227.26 (2)
5(im), 227.47 (3), 238.04 (15), 238.399 (3) (am), 301.03 (16), 343.165 (8), 343.50
6(1) (c) 2., 343.50 (3) (c), 803.09 (2m) and 893.825 of the statutes; relating to:
7legislative powers and duties, state agency and authority composition and
8operations, and administrative rule-making process.
Analysis by the Legislative Reference Bureau
1.
This bill changes the Department of Justice gifts and grants appropriations
from continuing appropriations to annual appropriations.
2.
This bill eliminates the power of the attorney general to appoint a solicitor
general and up to three deputy solicitors general, each of whom must be licensed to
practice law in this state. The effect of the bill is to eliminate the Office of the Solicitor
General in the Department of Justice, which represents the state in certain cases on
appeal in state and federal courts.
3.
This bill requires a party that alleges that a statute is unconstitutional, or in
violation of or preempted by federal law, to serve the speaker of the assembly, the
president of the senate, and the senate majority leader with a copy of the proceeding.
The bill also requires that, in such cases, the assembly, the senate, and the Joint
Committee on Legislative Organization (JCLO) are entitled to be heard,
representing the legislature and the state.
Under current law, if a statute, ordinance, or franchise is alleged to be
unconstitutional, the attorney general must be served with a copy of the proceeding
and be entitled to be heard. This requirement exists in the statutes for declaratory
judgment acts under s. 806.04 (11). The Wisconsin Supreme Court has also extended
the requirement to other types of actions involving claims that a statute is
unconstitutional. See Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280 N.W.2d 757
(1979). This bill incorporates the Kurtz rule into the statutes and extends both the
current statutory and Kurtz requirements of service and an opportunity to be heard
to the legislature when a statute is alleged to be unconstitutional or in violation of
or preempted by federal law.

The bill also provides that when a party challenges the constitutionality of a
statute, facially or as applied, or challenges a statute as violating or preempted by
federal law, as part of a claim or affirmative defense, the assembly, the senate, and
JCLO have the right at any time to intervene and participate in the action and may
also retain legal counsel other than the Department of Justice. Under the bill, the
Committee on Assembly Organization may intervene in the action, as well as obtain
legal counsel, on behalf of the assembly; the Committee on Senate Organization may
intervene in the action, as well as obtain legal counsel, on behalf of the senate; and
JCLO may intervene in the action, as well as obtain legal counsel, on behalf of the
state. If JCLO determines that the interests of the state will be best represented by
special counsel appointed by the legislature, JCLO must appoint special counsel to
represent the state defendants and act instead of the attorney general. In these
circumstances, special counsel has the powers of the attorney general with respect
to the litigation to which special counsel has been appointed.
4.
Under current law, DOJ deposits settlement funds that are not committed
under the terms of the settlement into a DOJ appropriation and may spend the funds
only after submitting a plan for the expenditure to the Joint Committee on Finance
for passive review. If JCF does not schedule a meeting to review the proposed plan
within 14 days, DOJ may expend the funds as provided in the plan. This bill requires
that DOJ must deposit all settlement funds into the general fund. This bill also
lapses all unencumbered settlement funds that are currently in the DOJ
appropriation into the general fund.
Current law allows the attorney general to compromise or discontinue an action
DOJ is prosecuting if the governor approves the compromise or discontinuance. This
bill requires JCF to approve the compromise or discontinuance instead of the
governor. Current law allows the attorney general to settle and compromise actions
in which the attorney general is appearing for and defending the state as the
attorney general determines to be in the best interest of the state. This bill requires
that, if the action is for injunctive relief or there is a proposed consent decree, the
attorney general must submit the settlement or compromise plan to JCF for passive
review. If JCF does not schedule a meeting to review the plan within 14 days, the
attorney general may proceed, but, if JCF does schedule a meeting, the attorney
general may proceed only with the approval of JCF.
The bill further provides that the attorney general may not submit a proposed
settlement plan to JCF in which the plan concedes the unconstitutionality or other
invalidity of a statute without the approval of JCLO.
5.
Currently, representatives to the assembly and senators, as well as legislative
employees, may receive legal representation from the Department of Justice in most
legal proceedings. Assembly and senate policies and practices also allow legislators
and legislative employees to retain outside legal counsel in some instances.
With respect to the assembly, the bill provides that the speaker of the assembly
may authorize a representative to the assembly or assembly employee who requires
legal representation to obtain outside legal counsel if the acts or allegations

underlying the action are arguably within the scope of the representative's or
employee's duties. The speaker may also obtain outside legal counsel in any action
in which the assembly is a party or in which the interests of the assembly are
affected, as determined by the speaker.
With respect to the senate, the bill provides that the senate majority leader may
authorize a senator or senate employee who requires legal representation to obtain
outside legal counsel if the acts or allegations underlying the action are arguably
within the scope of the senator's or employee's duties. The majority leader may also
obtain outside legal counsel in any action in which the senate is a party or in which
the interests of the senate are affected, as determined by the majority leader.
Finally, the bill provides that the cochairpersons of the Joint Committee on
Legislative Organization may authorize a legislative service agency employee who
requires legal representation to obtain outside legal counsel if the acts or allegations
underlying the action are arguably within the scope of the employee's duties. The
cochairpersons may also obtain outside legal counsel in any action in which the
legislature is a party or in which the interests of the legislature are affected, as
determined by the cochairpersons.
6.
The bill provides that any individual nominated by the governor or another
state officer or agency, and with the advice and consent of the senate appointed, to
any office or position may not hold the office or position, be nominated again for the
office or position, or perform any duties of the office or position during the legislative
session biennium if the individual's confirmation for the office or position is rejected
by the senate. Currently, there is no prohibition against the governor or another
state officer or agency nominating the individual again for the office or position or
appointing the individual to the office or position as a provisional appointment.
7.
This bill requires the Department of Administration to submit any proposed
changes to security at the capitol, including the posting of a firearm restriction, to
the Joint Committee on Legislative Organization for approval under passive review.
8.
This bill requires the Department of Veterans Affairs to submit to the Joint
Committee on Finance a notification of any transfers of funds from the
unencumbered balance of certain appropriations for veterans homes to the veterans
trust fund or the veterans mortgage loan repayment fund. Current law allows those
transfers to be made without any notification.
9.
Under current law, no later than September 15 of each even-numbered year,
each executive state agency must file with the Department of Administration the
agency's budget request for the succeeding biennium. This bill requires each agency
to include with its biennial budget request a report that lists each fee the agency is
authorized to charge. The report must also include the following:
1. The amount of each fee or the method of calculating the fee if there is no fixed
amount.

2. An identification of the agency's statutory authority to charge each fee.
3. A statement whether or not the agency currently charges the fee.
4. A description of whether and how each fee has changed over time.
5. Any recommendation the agency has concerning each fee.
The bill defines “fee” as any amount of money other than a tax that an agency
charges a person other than a governmental entity.
10.
This bill requires the Building Commission to establish an amortization
schedule for each short-term, general obligation debt authorized by the commission.
The amortization schedule must provide that a portion of the principal amount of the
debt is retired annually over the life of the improvement or asset to which the debt
is related. An amortization schedule established as required under the bill may not
be modified except as authorized by the Joint Committee on Finance under passive
review.
11.
This bill increases the size of the Group Insurance Board by four members. The
new members are appointed, respectively, by the speaker of the assembly, the
assembly minority leader, the senate majority leader, and the senate minority leader.
The bill also provides that the six members appointed by the governor for two-year
terms are subject to senate confirmation.
12.
Under current law, the Department of Natural Resources administers the
municipal flood control and riparian restoration program, which provides grants
that pay a portion of the costs of facilities and structures for the collection and
transmission of storm water, including the purchase of flowage and conservation
easements on lands within floodways, and of floodproofing public and private
structures located in the 100-year floodplain. Current law requires DNR to
promulgate rules specifying eligibility criteria for projects and for determining which
projects will receive financial assistance. However, under current law, during the
2017-19 fiscal biennium, DNR must consider an applicant to be eligible for such a
grant if the project is funded or executed in whole or in part by the U.S. Army Corps
of Engineers' small flood control projects program, and DNR must provide such an
applicant with a cost-sharing grant not to exceed $14,600,000. This bill extends this
requirement to the 2019-21 biennium as well.
13.
Under current law, the Department of Administration contracts with a vendor
to provide web-based technology services through a web portal to state agencies,
state authorities, units of the federal government, local governmental units, tribal
schools, individuals, and entities in the private sector. Revenue received from the
fees charged for certain services provided through the self-funded web portal is
disbursed as payment to the vendor.
This bill requires DOA to submit to the Joint Committee on Finance and the
legislature by October 1 of each year a report on the administration of the
self-funded portal. The report must include the following information: 1) a financial

statement of state revenues and expenditures; 2) a list of services available; 3) fees
charged for each service; 4) the activity level of each service; and 5) any other
information that DOA determines is appropriate to include.
14.
Under current law, the board of directors of the Wisconsin Economic
Development Corporation consists of 12 voting members as follows:
1. Six members are appointed by the governor subject to senate confirmation,
to serve at the pleasure of the governor.
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