SB127: Bill Text

Analysis by the Legislative Reference Bureau

Courts and procedure

Public defender

Under current law, the Public Defender Board may promulgate rules to assure that representation of indigent clients by the private bar is at the same level as the representation provided by the state public defender. Under this bill, the board's authority to promulgate rules is expanded to include setting standards for and imposing conditions upon private bar attorney certification, decertification, or recertification to represent clients. The bill also adds the following list of reasons as grounds for which the office of the state public defender may exclude a private bar attorney from a public defender list: 1) the attorney has failed to meet minimum attorney performance standards adopted by the state public defender; 2) the attorney has failed to comply with the supreme court rules of professional conduct for attorneys; 3) the attorney has engaged in conduct that is contrary to the interests of clients, the interests of justice, or the interests of the state public defender; or 4) the state public defender learns of any information that raises a concern about the attorney's character, performance, ability, or behavior.

The bill changes the rate at which the public defender must pay a private local attorney to whom a case is assigned from $40 per hour for time spent related to a case to $70 per hour for time spent related to a case. The bill provides $16,612,700 in each fiscal year of the 2019-21 biennium for the rate increase.

The bill provides $1,767,900 GPR in fiscal year 2019 and $3,535,800 in fiscal year 2020-21 to fund the assistant state public defender pay progression plan, which is a plan in current law that consists of 17 hourly salary steps, with each step equal to one-seventeenth of the difference between the lowest hourly salary and the highest hourly salary for the salary range for the assistant state public defender positions.

The bill directs the Public Defender Board to conduct a student loan payment pilot program for private bar attorneys who accept public defender appointments. The program would provide a payment to private bar attorneys that they may use to repay student loans of up to $20,000 per year for attorneys in counties with a population of 25,000 or less who agree to accept at least 50 state public defender appointments per year. The bill provides $250,000 in each fiscal year of the 2019-21 biennium for the program.

District Attorneys

The bill creates an independent prosecutor board that oversees and sets policies for a state prosecutors office, also created in the bill. Under the bill, the executive director of the state prosecutors office manages the office; prepares personnel policies, fiscal estimates, and an annual report; and represents the board before the governor, the legislature, bar associations, and courts. The executive director may also identify methods and practices for district attorneys that promote professional competence and ethical practices. Under the bill, the state prosecutors office assumes duties relating to district attorneys that current law assigns to the Department of Administration, such as preparing a budget for all of the prosecutorial units, approving appointments of special prosecutors when needed, and making requests for assistant district attorneys in certain prosecutorial units. The bill requires any rule that directly affects the state prosecutors office to be reviewed by the office and for the office to submit a report on the proposed rule that includes information about the effect of the proposed rule on the state prosecutors office. The bill requires DOA to provide the state prosecutors office with general access to a case management system currently used by the Department of Justice to manage case-related information and to share the information among prosecutors.

The bill provides $1,600,000 in fiscal year 2019-20 and $3,200,000 in fiscal year 2020-21 to fund the deputy and assistant district attorney pay progression plan, which is a plan in current law that consists of 17 hourly salary steps, with each step equal to one-seventeenth of the difference between the lowest hourly salary and the highest hourly salary for the salary range for the deputy and assistant district attorney positions. The bill also provides $3,320,000 in fiscal year 2019-20 and $4,427,000 in fiscal year 2020-21 to increase the authorized FTE for the assistant district attorneys by 60.85 FTE positions.

Circuit courts

The bill provides $2,500,000 in fiscal year 2019-20 and $5,000,000 in fiscal year 2020-21 to fund court appointments made at county expense.

Justice

The bill creates a pay scale for DOJ state crime laboratory analysts that consists of 17 hourly salary steps, with each step equal to one-seventeenth of the difference between the lowest hourly salary and the highest hourly salary for the salary range for DOJ state crime laboratory analysts contained in the state compensation plan. The compensation plan goes into effect on July 1, 2019.

The bill creates within DOJ 25 FTE positions and provides $1,378,700 in fiscal year 2019-20 and $3,378,900 in fiscal year 2020-21 to fund ongoing law enforcement investigations, forensics activities, and operations.

For further information see the state 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:

SB127,1 Section 1 . 13.093 (2) (a) of the statutes is amended to read:

SB127,4,21 13.093 (2) (a) Any bill making an appropriation, any bill increasing or decreasing existing appropriations or state or general local government fiscal liability or revenues, and any bill that modifies an existing surcharge or creates a new surcharge that is imposed under ch. 814, shall, before any vote is taken thereon by either house of the legislature if the bill is not referred to a standing committee, or before any public hearing is held before any standing committee or, if no public hearing is held, before any vote is taken by the committee, incorporate a reliable estimate of the anticipated change in appropriation authority or state or general local government fiscal liability or revenues under the bill, including to the extent possible a projection of such changes in future biennia. The estimate shall also indicate whether any increased costs incurred by the state under the bill can be mitigated through the use of contractual service contracts let in accordance with competitive procedures. For purposes of this paragraph, a bill increasing or decreasing the liability or revenues of the unemployment reserve fund is considered to increase or decrease state fiscal liability or revenues. Except as otherwise provided by joint rules of the legislature or this paragraph, such estimates shall be made by the department or agency administering the appropriation or fund or collecting the revenue. The legislative council staff shall prepare the fiscal estimate with respect to the provisions of any bill referred to the joint survey committee on retirement systems which create or modify any system for, or make any provision for, the retirement of or payment of pensions to public officers or employees. The director of state courts shall prepare the fiscal estimate with respect to the provisions of any bill that modifies an existing surcharge or creates a new surcharge that is imposed under ch. 814. The executive director of the state prosecutors office shall prepare the fiscal estimate with respect to the provisions of any bill that affects prosecutors or the state prosecutors office, including bills modifying or creating crimes or sentencing practices. When a fiscal estimate is prepared after the bill has been introduced, it shall be printed and distributed as are amendments.

SB127,2 Section 2 . 13.0967 of the statutes is created to read:

SB127,5,3 13.0967 Review of bills affecting state prosecutors office. Any bill that is introduced in either house of the legislature that directly affects the state prosecutors office shall have a notation to that effect on its jacket when the jacket is prepared. When a bill that has that notation on the jacket is introduced, the legislative reference bureau shall submit a copy of the bill to the state prosecutors office.

SB127,3 Section 3 . 15.77 of the statutes is created to read:

SB127,5,6 15.77 Prosecutor board. There is created a prosecutor board consisting of 11 members, appointed for staggered 3-year terms, as follows:

SB127,5,8 (1) From each district under s. 752.11 (1) (b), (c), and (d), 2 district attorneys appointed by a majority of district attorneys from the district.

SB127,5,10 (2) From the district under s. 752.11 (1) (a), the district attorney and a deputy district attorney appointed by the district attorney.

SB127,5,13 (3) Two nonelected prosecutors, each from a different county, appointed by a majority of nonelected prosecutors. Under this subsection, “prosecutor” does not include a special prosecutor appointed under s. 978.045 or 978.05 (8) (b).

SB127,5,14 (4) The attorney general or his or her designee.

SB127,4 Section 4. 16.971 (9) of the statutes is amended to read:

SB127,5,23 16.971 (9) In conjunction with the public defender board, the prosecutor board, the director of state courts, and the departments of corrections and justice and district attorneys, the department may maintain, promote and coordinate automated justice information systems that are compatible among counties and the officers and agencies specified in this subsection, using the moneys appropriated under s. 20.505 (1) (kh) and (kq). The department shall annually report to the legislature under s. 13.172 (2) concerning the department's efforts to improve and increase the efficiency of integration of justice information systems.

SB127,5 Section 5 . 16.971 (10) of the statutes is amended to read:

SB127,6,4 16.971 (10) The department shall maintain, and provide the department of justice and the state prosecutors office with general access to, a case management system that allows the state prosecutors office and district attorneys to manage all case-related information and share the information among prosecutors.

SB127,6 Section 6 . 20.005 (3) (schedule) of the statutes: at the appropriate place, insert the following amounts for the purposes indicated: - See PDF for table - See PDF for table - See PDF for table - See PDF for table

SB127,7 Section 7 . 20.548 of the statutes is created to read:

SB127,6,9 20.548 Prosecutor board. There is appropriated to the prosecutor board for the following program:

SB127,6,12 (1) Coordination and administration of prosecutor functions. (a) Program administration. The amounts in the schedule for program administration costs of the office of state prosecutors.

SB127,6,15 (g) Gifts, grants, and proceeds. All moneys received from gifts and grants and all proceeds from services, conferences, and sales of publications and promotional materials for the purposes for which made or received.

SB127,8 Section 8 . 20.923 (4) (f) 7x. of the statutes is created to read:

SB127,6,17 20.923 (4) (f) 7x. State prosecutors office: executive director.

SB127,9 Section 9 . 227.118 of the statutes is created to read:

SB127,7,10 227.118 Review of rules affecting state prosecutors office. (1) Report on rules affecting state prosecutors office. If a proposed rule directly affects the state prosecutors office, the agency proposing the rule shall, prior to submitting the proposed rule to the legislative council staff under s. 227.15, submit the proposed rule to the state prosecutors office. The state prosecutors office shall prepare a report on the proposed rule before it is submitted to the legislative council staff under s. 227.15. The state prosecutors office may request any information from other state agencies, local governments, individuals, or organizations that is reasonably necessary for the office to prepare the report. The state prosecutors office shall prepare the report within 30 days after the rule is submitted to the office.

SB127,7,13 (2) Findings of the office to be contained in the report. The report of the state prosecutors office shall contain information about the effect of the proposed rule on the state prosecutors office.

SB127,7,15 (3) Applicability. This section does not apply to emergency rules promulgated under s. 227.24.

SB127,10 Section 10 . 227.19 (3) (em) of the statutes is created to read:

SB127,7,18 227.19 (3) (em) The report of the state prosecutors office, if the proposed rule directly affects the state prosecutors office.

SB127,11 Section 11 . 230.08 (2) (e) 7. of the statutes is amended to read:

SB127,7,20 230.08 (2) (e) 7. Justice — 5 6.

SB127,12 Section 12 . 230.08 (2) (qp) of the statutes is created to read:

SB127,7,22 230.08 (2) (qp) The executive director in the office of state prosecutors.

SB127,13 Section 13 . 230.12 (13) of the statutes is created to read:

SB127,8,5 230.12 (13) Department of justice state crime laboratories pay progression plan. (a) There is established a pay progression plan for department of justice state crime laboratory analysts. The pay progression plan shall consist of 17 hourly salary steps, with each step equal to one-seventeenth of the difference between the lowest hourly salary and the highest hourly salary for the salary range for the analysts contained in the compensation plan. The pay progression plan shall be based entirely on merit.

SB127,8,13 (b) Beginning with the first pay period that occurs on or after July 1, 2020, all department of justice state crime laboratory analysts who have served with the state as analysts for a continuous period of 12 months or more, and who are not paid the maximum hourly rate, shall be paid an hourly salary at the step that is immediately above their hourly salary on June 30, 2020. All other analysts, who are not paid the maximum hourly rate, shall be paid an hourly salary at the step that is immediately above their hourly salary on June 30, 2020, when they have served with the state as analysts for a continuous period of 12 months.

SB127,8,25 (c) Beginning with the first pay period that occurs on or after July 1, 2021, and with the first pay period that occurs on or after each succeeding July 1, all department of justice state crime laboratory analysts who have served with the state as analysts for a continuous period of 12 months or more, and who are not paid the maximum hourly rate, may, at the discretion of the attorney general, be paid an hourly salary at any step, or part thereof, above their hourly salary on the immediately preceding June 30. All other analysts who are not paid the maximum hourly rate may, at the discretion of the attorney general, be paid an hourly salary at any step, or part thereof, above their hourly salary on the immediately preceding June 30, when they have served with the state as agents for a continuous period of 12 months. No salary adjustment for an analyst under this paragraph may exceed 10 percent of his or her base pay during a fiscal year.

SB127,14 Section 14. 230.33 (1) of the statutes is amended to read:

SB127,9,12 230.33 (1) A person appointed to an unclassified position by the governor, elected officer, judicial body, or prosecutor board, or by a legislative body or committee shall be granted a leave of absence without pay for the duration of the appointment and for 3 months thereafter, during which time the person has restoration rights to the former position or equivalent position in the department in which last employed in a classified position without loss of seniority. The person shall also have reinstatement privileges for 5 years following appointment to the unclassified service or for one year after termination of the unclassified appointment whichever is longer. Restoration rights and reinstatement privileges shall be forfeited if the reason for termination of the unclassified appointment would also be reason for discharge from the former position in the classified service.

SB127,15 Section 15 . 977.02 (5) of the statutes is amended to read:

SB127,9,19 977.02 (5) Promulgate rules establishing procedures to assure that representation of indigent clients by the private bar at the initial stages of cases assigned under this chapter is at the same level as the representation provided by the state public defender, including setting standards for and imposing conditions upon private bar attorney certification, decertification, or recertification to represent clients under this chapter.

SB127,16 Section 16 . 977.08 (3) (b) of the statutes is renumbered 977.08 (3) (b) 1. and amended to read:

SB127,9,25 977.08 (3) (b) 1. A final set of lists for each county shall be prepared, certified, and annually updated by the state public defender. Persons may not be excluded from any a list unless only if the state public defender states in writing the reasons for such action in the context of accordance with subd. 2. and existing rules adopted by the state public defender board. Any attorney thus excluded shall then have the opportunity to may appeal the state public defender's decision to the board, which shall issue a final decision in writing.

SB127,17 Section 17 . 977.08 (3) (b) 2. of the statutes is created to read:

SB127,10,6 977.08 (3) (b) 2. An attorney may be excluded from a list under subd. 1. if any of the following applies:

SB127,10,8 a. The attorney fails or has failed to meet minimum attorney performance standards adopted by the state public defender.

SB127,10,9 b. The attorney fails or has failed to comply with SCR chapter 20.

SB127,10,11 c. The attorney engages in conduct that is contrary to the interests of clients, the interests of justice, or the interests of the state public defender.

SB127,10,13 d. The state public defender learns of any information that raises a concern about the attorney's character, performance, ability, or behavior.

SB127,18 Section 18 . 977.08 (3) (c) of the statutes is amended to read:

SB127,10,19 977.08 (3) (c) A person appointed from the set of lists prepared under par. (b) 1. shall be appointed in order from the top of each list; if any attorney thus appointed states in writing that he or she cannot accept the appointment, he or she shall be placed on the bottom of the list, and the attorney thus elevated to the top of the list shall be appointed.

SB127,19 Section 19 . 977.08 (4m) (c) of the statutes is amended to read:

SB127,11,2 977.08 (4m) (c) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 29, 1995, and before July 1, 2019, private local attorneys shall be paid $40 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.

SB127,20 Section 20 . 977.08 (4m) (d) of the statutes is created to read:

SB127,11,10 977.08 (4m) (d) Unless otherwise provided by a rule promulgated under s. 977.02 (7r) or by a contract authorized under sub. (3) (f), for cases assigned on or after July 1, 2019, private local attorneys shall be paid $70 per hour for time spent related to a case, excluding travel, and $25 per hour for time spent in travel related to a case if any portion of the trip is outside the county in which the attorney's principal office is located or if the trip requires traveling a distance of more than 30 miles, one way, from the attorney's principal office.

SB127,21 Section 21 . 978.001 (1b), (1d) and (1n) of the statutes are created to read:

SB127,11,12 978.001 (1b) “Board" means the prosecutor board.

SB127,11,14 (1d) “Executive director" means the executive director appointed under s. 978.003 (3).

SB127,11,15 (1n) “Office" means the state prosecutors office.

SB127,22 Section 22 . 978.001 (1p) of the statutes is repealed.

SB127,23 Section 23 . 978.003 of the statutes is created to read:

SB127,11,18 978.003 Board; duties. The board shall do all of the following:

SB127,11,20 (1) Submit the budget in accordance with s. 16.42 after the executive director submits the budget to the board and the board approves it.

SB127,11,22 (2) At least annually submit to the joint committee on finance recommendations on the allocation of prosecutor resources.

SB127,11,24 (3) Appoint an attorney with experience in criminal prosecution as the executive director of the office.

SB127,11,25 (4) Oversee, and set policy initiatives for, the executive director.

SB127,12,2 (5) Review existing law or proposed legislation and make recommendations to the legislature.

SB127,24 Section 24 . 978.004 of the statutes is created to read:

SB127,12,5 978.004 State prosecutors office executive director. (1) The executive director shall do all of the following:

SB127,12,7 (a) Manage and direct the office subject to the policy initiatives set under s. 978.003 (4).

SB127,12,9 (b) Prepare and submit to the board for its approval a budget and any personnel and employment policies that the board requires.

SB127,12,11 (c) Prepare and submit to the board and other appropriate persons an annual report of the activities of the office in the form that the board directs.