Public defenders and district attorneys
Private bar reimbursement rate
Under current law, the state public defender (SPD) provides legal representation for indigent persons in criminal, delinquency, and certain related cases. The SPD assigns cases either to staff attorneys or to local private attorneys. Generally, a private attorney who is assigned a case by the SPD is paid $70 per hour for time spent related to the case and $25 per hour for time spent in travel related to a case. The bill increases the rate the private attorney is paid for cases assigned on or after July 1, 2023. Under the bill, a private attorney is paid $100 per hour for time spent related to a case, excluding travel, and $50 per hour for time spent in travel related to a case.
Annual caseload standards exemption
Under current law, the SPD may exempt up to 10 full-time assistant SPDs in the trials subunit from annual caseload standards based on their need to perform other assigned duties. Under the bill, beginning on July 1, 2023, the SPD may exempt up to 25 such assistant SPDs from annual caseload standards based on their need to perform other assigned duties.
Increase in deputy district attorney allocation
The bill increases the number of deputy district attorneys that may be appointed in a prosecutorial unit with a population of 200,000 or more but less than 750,000 from three deputy district attorneys to four deputy district attorneys.
Circuit courts
Statutory addition of new circuit court branches
The bill adds to the statutory list of judicial circuit branches to reflect the circuit court branches authorized under 2019 Wisconsin Act 184 to be added by the director of state courts, with four designated to begin operation in August 2022 and four designated to begin operation in August 2023. Under current law, the statutes contain a list dividing, by administrative district and judicial circuit, how many branches each circuit has. Act 184 authorized the director of state courts to add four additional circuit court branches to begin operation on August 1, 2022, and four additional circuit court branches to begin operation on August 1, 2023. Act 184 further authorized the director of state courts to allocate each new branch to any county that the director of state courts determined to be in need of an additional circuit court branch and that established, or will have established, by May 31 of the year the court would begin operation, the appropriate infrastructure to support an additional circuit court branch. Act 184 further authorized the director of state courts to require any county, as a condition for receiving a circuit court branch allocation, to have established or to apply for a grant to establish a drug court. The director of state courts allocated new circuit court branches to Adams, Eau Claire, Vilas, and Waushara Counties, which were designated to begin operation on August 1, 2022. The director of state courts has also allocated new circuit court branches to Clark, Manitowoc, Sawyer, and Wood Counties, and these are designated to begin operation on August 1, 2023.
Reimbursements for pretrial risk assessments
The bill requires the director of state courts to reimburse counties for circuit court costs related to implementing the use of pretrial risk assessments. The director of state courts must make the payments from a new biennial general program operations appropriation created in the bill.
Certificates of qualification for employment
The bill eliminates the $20 application fee for an individual convicted of a crime to apply for a certificate of qualification for employment. Under current law, certain nonviolent offenders who have been released from confinement may apply to the Council on Offender Employment for a certificate, and the council generally must approve an offender’s application if the council finds that the offender is not likely to pose a risk to public safety, that the certificate will substantially assist the offender in obtaining employment or occupational licensing or certification, and that the offender is less likely to commit an additional criminal offense if the offender obtains a certificate. Under current law, a certificate provides relief to an offender from ineligibility for or disadvantage related to employment, occupational licensing, or occupational certification that results from the offender’s criminal record. A certificate also incentivizes an employer to hire an offender by providing the employer with limited immunity from civil liability related to acts or omissions of the offender.
General courts and procedure
Extreme risk protection injunctions
Under current law, a person is prohibited from possessing a firearm, and must surrender all firearms, if the person is subject to a domestic abuse injunction, a child abuse injunction, or, in certain cases, a harassment or an individuals-at-risk injunction. If a person surrenders a firearm because the person is subject to one of those injunctions, the firearm may not be returned to the person until a court determines that the injunction has been vacated or has expired and that the person is not otherwise prohibited from possessing a firearm. A person who is prohibited from possessing a firearm under such an injunction is guilty of a Class G felony for violating the prohibition.
The bill creates an extreme risk protection temporary restraining order and injunction to prohibit a person from possessing a firearm. Under the bill, either a law enforcement officer or a family or household member of the person may file a petition with a court to request an extreme risk protection injunction. The petition must allege facts that show that the person is substantially likely to injure himself or herself or another if the person possesses a firearm.
Under the bill, the petitioner may request the court to consider first granting a temporary restraining order (TRO). If the petitioner requests a TRO, the petitioner must include evidence that there is an immediate and present danger that the person may injure himself or herself or another if the person possesses a firearm and that waiting for the injunction hearing increases the immediate and present danger.
If the petitioner requests a TRO, the court must hear the petition in an expedited manner. The judge must issue a TRO if, after questioning the petitioner and witnesses or relying on affidavits, the judge determines that it is substantially likely that the petition for an injunction will be granted and the judge finds good cause to believe there is an immediate and present danger that the person will injure himself or herself or another if the person has a firearm and that waiting for the injunction hearing may increase the immediate and present danger. If the judge issues a TRO, the TRO is in effect until the injunction hearing, which must occur within 14 days. The TRO must require a law enforcement officer to personally serve the person with the order and to require the person to immediately surrender all firearms in his or her possession. If a law enforcement officer is unable to personally serve the person, then the TRO requires the person to surrender within 24 hours all firearms to a law enforcement officer or a firearms dealer and to provide the court a receipt indicating the surrender occurred.
At the injunction hearing, the court may grant an extreme risk protection injunction ordering the person to refrain from possessing a firearm if the court finds by clear and convincing evidence that the person is substantially likely to injure himself or herself or another if the person possesses a firearm. If the person was not subject to a TRO, the court also must order the person to surrender all firearms he or she possesses. An extreme risk protection injunction is effective for up to one year and may be renewed. A person who is subject to an extreme risk protection injunction may petition to vacate the injunction.
A person who possesses a firearm while subject to an extreme risk protection TRO or injunction is guilty of a Class G felony. If a person surrenders a firearm because the person is subject to an extreme risk protection TRO or injunction, the firearm may not be returned to the person until a court determines that the TRO has expired or the injunction has been vacated or has expired and that the person is not otherwise prohibited from possessing a firearm.
Finally, a person who files a petition for an extreme risk protection injunction, knowing the information in the petition to be false, is guilty of the crime of false swearing, a Class H felony.
Qui tam actions for false claims
The bill restores a private individual’s authority to bring a qui tam claim against a person who makes a false or fraudulent claim for Medical Assistance, which was eliminated in 2015 Wisconsin Act 55, and further expands qui tam actions to include any false or fraudulent claims to a state agency. A qui tam claim is a claim initiated by a private individual on his or her own behalf and on behalf of the state against a person who makes a false claim relating to Medical Assistance or other moneys from a state agency. The bill provides that a private individual may be awarded up to 30 percent of the amount of moneys recovered as a result of a qui tam claim, depending upon the extent of the individual’s contribution to the prosecution of the action. The individual may also be entitled to reasonable expenses incurred in bringing the action, as well as attorney fees. The bill includes additional changes not included in the prior law to incorporate provisions enacted in the federal Deficit Reduction Act of 2005 and conform state law to the federal False Claims Act, including expanding provisions to facilitate qui tam actions and modifying the bases for liability to parallel the liability provisions under the federal False Claims Act. In addition to qui tam claims, DOJ has independent authority to bring a claim against a person for making a false claim for Medical Assistance. The bill modifies provisions relating to DOJ’s authority to parallel the liability and penalty standards relating to qui tam claims and to parallel the forfeiture amounts provided under the federal False Claims Act.
DOT data sharing
Under current law, DOT annually transmits to the director of state courts a list of persons residing in the state that includes certain information about those persons. Each year, the director of state courts uses that information, along with other information available to the director of state courts, to compile a master list of potential jurors for use by the state circuit courts. The bill requires DOT to also send that list to the clerks of court for the federal district courts within this state.
County law libraries
The bill creates an appropriation account to receive any amounts from counties for providing materials or other services under contracts for county law libraries.
CRIMES
Expungement
Under current law, a court may order a person’s criminal record expunged of a crime if all of the following apply:
1. The maximum term of imprisonment for the crime is six years or less (Class H felony and below).
2. The person committed the crime before the age of 25.
3. The person had not been previously convicted of a felony.
4. The crime was not a violent felony.
Current law specifies that the expungement order must be made only at sentencing and then the record is expunged when the person completes his or her sentence. If the court does not order a criminal record expunged at sentencing, current law generally does not provide for another means to expunge the criminal record.
The bill makes several changes to the expungement process. The bill removes the condition that the person committed the crime before the age of 25. (The bill retains the requirements that the crime be no greater than a Class H felony, the person had no previous felony convictions, and the crime was not a violent felony.) The bill makes certain crimes ineligible for expungement, such as traffic crimes, the crime of violating a domestic abuse restraining order or injunction, criminal trespass, and criminal damage to a business. The bill also allows the sentencing court to order that a person’s record not be eligible for expungement.
The bill continues to allow the court to order at sentencing that the record be expunged when the person completes his or her sentence. The bill also provides that, if the court did not make an order at sentencing, the person may file a petition with the sentencing court after he or she completes his or her sentence. Upon receipt of the petition, the court must review the petition and then may order the record expunged or may deny the petition. If the court denies the petition, the person may not file another petition for two years. The person must pay a $100 fee to the county for a second petition, and no person may file more than two petitions per crime. The bill limits a person to one expungement. The changes described in this paragraph retroactively apply to persons who were convicted of a crime before the bill takes effect.
The bill provides that, if a record is expunged of a crime, that crime is not considered a conviction for employment purposes and specifies that employment discrimination because of a conviction record includes requesting a person to supply information regarding a crime if the record has been expunged of the crime. Finally, the bill provides that it is not employment discrimination because of conviction record for the Law Enforcement Standards Board to consider a conviction that has been expunged with respect to applying any standard or requirement for the certification, decertification, or required training of law enforcement officers, tribal law enforcement officers, jail officers, and juvenile detention officers.
Immunity for certain controlled substances offenses
Current law grants immunity from prosecution for possessing a controlled substance to a person, called an aider, who summons or provides emergency medical assistance to another person because the aider believes the other person is suffering from an overdose or other adverse reaction to a controlled substance. Under 2017 Wisconsin Act 33, an aider was also immune from having probation, parole, or extended supervision revoked for possessing a controlled substance under the same circumstances. Act 33 also granted the aided person immunity from having probation, parole, or extended supervision revoked for possessing a controlled substance when an aider seeks assistance for the aided person. The immunity applied only if the aided person completes a treatment program as part of his or her probation, parole, or extended supervision. Act 33 also provided that a prosecutor must offer an aided person who is subject to prosecution for possessing a controlled substance a deferred prosecution agreement if the aided person completes a treatment program. The expanded immunities under Act 33 were temporary, and expired on August 1, 2020. The bill permanently restores these expanded immunities from Act 33.
Alternatives to prosecution for disorderly conduct
The bill requires a prosecutor to offer to certain disorderly conduct defendants a deferred prosecution agreement or an agreement in which the defendant stipulates to his or her guilt of a noncriminal ordinance violation. Under the bill, a prosecutor must offer alternatives to prosecution to a person who has committed a disorderly conduct violation if it is the person’s first disorderly conduct violation, the person has not committed a similar violation previously, and the person has not committed a felony in the previous three years. Under the bill, if the person is offered a deferred prosecution agreement, he or she must be required to pay restitution, if applicable.
EDUCATION
Primary and secondary education: general school aids and revenue limits
School district revenue limits; per pupil increase
Current law generally limits the total amount of revenue per pupil that a school district may receive from general school aids and property taxes in a school year to the amount of revenue allowed per pupil in the previous school year plus a per pupil adjustment, if any, as provided by law. Current law does not provide a per pupil adjustment in the 2021-22 school year and any school year thereafter.
For purposes of calculating school district revenue limits, the bill provides a per pupil increase of $350 for the 2023-24 school year and $650 for the 2024-25 school year. Under the bill, in the 2025-26 school year and thereafter, the per pupil adjustment is the per pupil increase for the previous school year as adjusted for any increase in the consumer price index.
Low revenue ceiling; per pupil amount and restrictions
Current law provides a minimum per pupil revenue limit for school districts, known as the revenue ceiling. Under current law, the per pupil revenue ceiling is $10,000 in the 2020-21 school year and each school year thereafter. The bill increases the per pupil revenue ceiling to $10,450 for the 2023-24 school year and to $11,200 for the 2024-25 school year and, beginning in the 2025-26 school year, annually adjusts the revenue ceiling for any increase in the consumer price index.
Current law also provides that during the three school years following a school year in which an operating referendum fails in a school district, the school district’s revenue ceiling is the revenue ceiling that applied in the school year during which the referendum was held. The bill eliminates the provision under which a school district’s revenue ceiling is the revenue ceiling from a previous school year because an operating referendum failed in the school district.
Counting pupils enrolled in four-year-old kindergarten
The bill changes how a pupil enrolled in a four-year-old kindergarten is counted by a school district for purposes of state aid and revenue limits. Under current law, beginning with state aid paid in the 2024-25 school year and revenue limits calculated for the 2024-25 school year, a pupil enrolled in a four-year-old kindergarten program is counted as 0.5 pupil unless the program provides at least 87.5 additional hours of outreach activities, in which case the pupil is counted as 0.6 pupil. Under the bill, if the four-year-old kindergarten program requires full-day attendance by pupils for five days a week, a pupil enrolled in the program is counted as one pupil.
High poverty aid
Under current law, if at least 50 percent of a school district’s enrollment is eligible for a free or reduced-price lunch under the federal school lunch program, the school district is eligible for a prorated share of the amount appropriated as high poverty aid. For school districts other than a first class city school district (currently only Milwaukee Public Schools), high poverty aid is considered state aid for purposes of revenue limits. For MPS, high poverty aid must be used to reduce the school property tax levied for the purpose of offsetting the aid reduction attributable to the Milwaukee Parental Choice Program. The bill eliminates high poverty aid beginning in the 2023-24 school year.
Primary and secondary education: categorical aids
Per pupil aid
Under current law, per pupil aid is a categorical aid paid to school districts. Per pupil aid is funded from a sum sufficient appropriation and is not considered for purposes of revenue limits. Under current law, the amount of per pupil aid paid to a school district is calculated using a three-year average of the number of pupils enrolled in the school district and a per pupil amount set by law. Under current law, in the 2022-23 school year and each school year thereafter, the per pupil amount is $742. Under the bill, the per pupil amount is $766 in the 2023-24 school year and $811 in the 2024-25 school year and each year thereafter.
Funding for special education and school age parents programs
The bill changes the rate at which the state reimburses school boards, operators of independent charter schools, cooperative educational service agencies (CESAs), and county children with disabilities education boards (CCDEBs) for costs incurred to provide special education and related services to children with disabilities and for school age parents programs (eligible costs). Under current law, the state reimburses the full cost of special education for children in hospitals and convalescent homes for orthopedically disabled children. After those costs are paid, the state reimburses remaining eligible costs from the amount remaining in the appropriation account at a rate that distributes the full amount appropriated. DPI estimates that, in the 2022-23 school year, the reimbursement rate is 31.7 percent.
The bill changes the appropriation to a sum sufficient and provides that, beginning in the 2023-24 school year, after full payment of hospital and convalescent home costs, the remaining costs are reimbursed at 60 percent of eligible costs.
Currently, DPI provides 1) special education aid to school districts, independent charter schools, CESAs, and CCDEBs; 2) aid to school districts, CESAs, and CCDEBs for providing physical or mental health treatment services to private school and tribal school pupils; and 3) aid for school age parents programs to school districts only.
High-cost special education aid
The bill changes the rate at which the state reimburses school boards, operators of independent charter schools, CESAs, and CCDEBs for nonadministrative costs in excess of $30,000 incurred for providing special education and related costs to a child (aidable costs). Under current law, 90 percent of aidable costs are paid from a sum certain appropriation. If the amount of the appropriation is insufficient to pay the full 90 percent of aidable costs, DPI prorates payments among eligible applicants. For the 2022-23 school year, DPI estimates that the reimbursement rate is 39.5 percent of aidable costs under this aid program.
The bill changes the appropriation to a sum sufficient appropriation and provides that aidable costs are reimbursed at the following rates:
1. In the 2023-24 school year, 45 percent of aidable costs.
2. In the 2024-25 school year and in each school year thereafter, 60 percent of aidable costs.
Bilingual-bicultural education aids
The bill increases the reimbursement rate for a bilingual-bicultural education program to 15 percent of qualifying costs in the 2023-24 school year and 20 percent of qualifying costs in the 2024-25 school year and each school year thereafter.
Under current law, a bilingual-bicultural education program is a program designed to improve the comprehension and the speaking, reading, and writing ability of a limited-English proficient (LEP) pupil in the English language. A school district is required to establish a bilingual-bicultural education program if it has a certain amount of LEP pupils from the same language group within an individual school in the district, described below. If DPI determines that a school district’s bilingual-bicultural education program meets all statutory requirements, DPI reimburses the school district a percentage of qualifying costs of the bilingual-bicultural education program. Under current law, the percentage that is reimbursed is calculated by dividing the amount allocated in the biennial budget act among all qualifying school districts. DPI estimates that qualifying school districts received reimbursement for bilingual-bicultural education programs in the amount of 7.7 percent of qualifying costs for the 2021-22 school year.
Aid for English language acquisition
The bill creates a new categorical aid for school districts and independent charter schools to offset the costs of educating LEP pupils.
Under current law, a school board is required to provide a bilingual-bicultural education program to LEP pupils who attend a school in the school district if the school meets any of the following thresholds:
1. Within a language group, 10 or more LEP pupils are enrolled in kindergarten to grade 3.
2. Within a language group, 20 or more LEP pupils are enrolled in grades 4 to 8.
3. Within a language group, 20 or more LEP pupils are enrolled in grades 9 to 12.
All school boards are required to educate all LEP pupils, but only school boards that are required to provide bilingual-bicultural education programs are eligible under current law for categorical aid targeted toward educating LEP pupils. Under current law, in each school year, DPI distributes $250,000 among eligible school districts whose enrollments in the previous school year were at least 15 percent LEP pupils, and DPI distributes the amount remaining in the appropriation account to eligible school districts on the basis of the school districts’ expenditures on the required bilingual-bicultural education programs during the prior school year.
Under the bill, beginning in the 2024-25 school year, DPI must annually pay each school district and each operator of an independent charter school an amount equal to $500 times the number of LEP pupils enrolled in the school district or at the charter school in the previous school year. Under the bill, DPI must pay a school district or independent charter school that had at least one but no more than 20 LEP pupils in the previous school year $10,000. This new categorical aid is in addition to aid already paid under current law and is not conditioned on whether the school board or independent charter school is required to provide a bilingual-bicultural education program.
Pupil transportation aid
Under current law, a school district or an operator of a charter school that provides transportation to and from a school receives a state aid payment for transportation. The amount of the aid payment depends on the number of pupils transported and the distance of each pupil’s residence from the school. The bill increases aid payments for pupils who reside more than 12 miles from the school from $375 per pupil to $400 per pupil, beginning in the 2023-24 school year.
High cost transportation aid; stop-gap payments
Under current law, a school district is eligible for high cost transportation aid if 1) the school district has a pupil population density of 50 or fewer pupils per square mile and 2) the school district’s per pupil transportation cost exceeds 140 percent of the statewide average per pupil transportation cost. Current law also provides aid, known as a “stop-gap payment,” to any school district that qualified for high cost transportation aid in the immediately preceding school year but is ineligible to receive aid in the current school year. The stop-gap payment is equal to 50 percent of the amount the school district received in the preceding school year. Current law specifies that no more than a total of $200,000 may be paid in stop-gap payments in any fiscal year. The bill removes the $200,000 limitation on high cost transportation aid stop-gap payments. The bill also specifies that, if the amount appropriated for all high cost transportation aid payments, including stop-gap payments, in any fiscal year is insufficient, all high cost transportation aid payments must be prorated.
Sparsity aid; stop-gap payments
Under current law, a school district is eligible for sparsity aid if the number of pupils per square mile in the school district is less than 10 and the school district’s membership in the previous school year did not exceed 1,000 pupils. The amount of aid is $400 per pupil if the school district’s membership in the previous school year did not exceed 745 pupils and $100 per pupil if the if the school district’s membership in the previous school year was between 745 and 1,000 pupils. Current law also provides a reduced payment, known as a stop-gap payment, to a school district that was eligible to receive sparsity aid in the previous school year but is not eligible to receive sparsity aid in the current school year because it no longer satisfies the pupils-per-square-mile requirement. The amount of the stop-gap payment is 50 percent of the amount of sparsity aid the school district received in the previous school year.
