SB658: Bill Text

SB658,,3 Analysis by the Legislative Reference Bureau

This bill generally provides that a residential tenant has the right to counsel at public expense in an eviction action.

The bill provides that, in a residential eviction action, a statutory notice must be attached to the summons informing the tenant that the tenant has the right to have counsel provided at public expense, and, if service is made by publication, the statutory notice also must by published. If a tenant contacts the clerk of court to request the appointment of counsel, files an answer without the assistance of counsel, or appears in court without counsel on the return date of the summons, the bill requires the court or circuit court commissioner to inquire of the tenant whether the tenant waives counsel, and, if the tenant does not waive counsel, the court or commissioner must appoint counsel and stay the proceedings. Under the bill, such a stay generally remains in effect until counsel is appointed for the tenant, and the tenant is entitled to continued possession or occupancy of the premises while the stay remains in effect. If a tenant is entitled to counsel under the bill, the court may appoint counsel for the tenant or refer the tenant to the State Public Defender, which must appoint counsel without a determination of indigency.

The bill also requires that residential rental agreements include a notice of the tenant’s right to counsel in eviction cases, and requires that landlords providing notice of residential tenant eviction must include in such notice information about how the tenant has the right to counsel in an eviction action. The required language of these notices is included in the bill.

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

SB658,,4 The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB658,1 Section 1. 20.550 (1) (b) of the statutes is created to read:

SB658,,6 20.550 (1) (b) Counsel for termination of residential tenancy. A sum sufficient for the cost of providing legal services under s. 977.05 (4) (i) 10.

SB658,2 Section 2. 704.145 of the statutes is created to read:

SB658,,8 704.145 Notices of right to counsel in eviction actions. (1) A residential rental agreement shall include the following notice in the agreement or in an addendum to the agreement:

SB658,,9 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS

SB658,,10 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a tenant whose residential tenancy has been terminated for any reason, the tenant has a right to counsel at public expense and, once referred to the state public defender, the state public defender shall appoint counsel for the tenant under s. 977.08 of the Wisconsin Statutes without a determination of indigency, unless the tenant knowingly and voluntarily waives the right to counsel. A tenant who wants counsel appointed in an eviction action must appear on the date specified in the summons or request that counsel be appointed by contacting the clerk of court of the county in which the residential eviction action has been brought on or before the return date specified in the summons. A tenant is advised that this notice is only a summary of the tenant’s rights and the specific language of the statutes governs in all instances.

SB658,,11 (2) A landlord providing notice under ss. 704.16, 704.17, and 704.19 shall include in the notice the following information:

SB658,,12 RIGHT TO COUNSEL IN EVICTION ACTIONS

SB658,,13 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a tenant whose residential tenancy has been terminated for any reason, the tenant has a right to counsel at public expense and, once referred to the state public defender, the state public defender shall appoint counsel for the tenant under s. 977.08 of the Wisconsin Statutes without a determination of indigency, unless the tenant knowingly and voluntarily waives the right to counsel. A tenant who wants counsel appointed in an eviction action must appear on the date specified in the summons or request that counsel be appointed by contacting the clerk of court of the county in which the residential eviction action has been brought on or before the return date specified in the summons. A tenant is advised that this notice is only a summary of the tenant’s rights and the specific language of the statutes governs in all instances.

SB658,3 Section 3. 704.17 (4) of the statutes is amended to read:

SB658,,15 704.17 (4) Form of notice and manner of giving. Notice must be in writing and given as specified in s. 704.21. If so given, and unless ordered otherwise by a court in an eviction action under ch. 799, the tenant is not entitled to possession or occupancy of the premises after the date of termination specified in the notice.

SB658,4 Section 4. 799.05 (8) of the statutes is created to read:

SB658,,17 799.05 (8) Notice of right to counsel in residential eviction actions. In a residential eviction action, a notice shall be attached to the summons informing the tenant that the tenant has the right to have counsel provided at public expense, as provided under s. 799.425. The notice shall be substantially in the following form:

SB658,,18 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS

SB658,,19 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a tenant whose residential tenancy has been terminated for any reason, the tenant has a right to counsel at public expense and, once referred to the state public defender, the state public defender shall appoint counsel for the tenant under s. 977.08 of the Wisconsin Statutes without a determination of indigency, unless the tenant knowingly and voluntarily waives the right to counsel. A tenant who wants counsel appointed must appear on the return date specified in the attached summons or contact the clerk of court on or before the return date at .... (contact information) to request that counsel be appointed.

SB658,5 Section 5. 799.09 of the statutes is amended to read:

SB658,,21 799.09 Public information. Information The clerk of court shall disseminate and publicize throughout the county information regarding the existence, location, and hours of the circuit court’s small claims system shall be disseminated and publicized throughout the county by the clerk of court. Each county shall produce and make available to all litigants in small claims actions publications explaining the procedures to be followed by litigants in small claims actions and information regarding the rights of tenants in residential eviction actions to have counsel provided at public expense, as provided under s.799.425.

SB658,6 Section 6. 799.12 (6) (c) (intro.) of the statutes is amended to read:

SB658,,23 799.12 (6) (c) (intro.) If the defendant’s post-office address cannot be ascertained with reasonable diligence, the mailing may be omitted and service may be made by publishing as a class 1 notice under ch. 985 a notice in substantially the following form, except as provided in s. 799.22 (4) (b) 3., along with the notice required under s. 799.05 (8), if applicable:

SB658,7 Section 7. 799.14 (2) of the statutes is amended to read:

SB658,,25 799.14 (2) Effect of actual appearance. This section shall not apply to a defendant who actually appeared and submitted to the jurisdiction of the court without filing application as provided in sub. (1), unless the defendant is a tenant in a residential eviction action who was not represented by counsel and did not waive the tenant’s right to counsel as provided under s. 799.425 (1) (b).

SB658,8 Section 8. 799.16 (3) (b) of the statutes is amended to read:

SB658,,27 799.16 (3) (b) In all other cases where in which the summons and complaint are returned with proof that the defendant cannot be served with personal or substituted service within the state under s. 799.12 (1), the court shall, on the return date, adjourn the case to a day certain not less than 7 days from the return date, and the plaintiff shall affix a notice in substantial conformity with sub. (4) (c) or (d) onto some part of the premises where it may be conveniently read. At least 5 days prior to the return date, an additional copy of said notice, together with a copy of the summons and complaint, shall be mailed to the defendant at the last-known address, even if it is the premises which are the subject of the action.

SB658,9 Section 9. 799.16 (4) (c) (title) of the statutes is amended to read:

SB658,,29 799.16 (4) (c) (title) Notice in nonresidential eviction.

SB658,10 Section 10. 799.16 (4) (d) of the statutes is created to read:

SB658,,31 799.16 (4) (d) Notice in residential eviction.

SB658,,32 STATE OF WISCONSIN

SB658,,33 CIRCUIT COURT

SB658,,34 .... COUNTY

SB658,,35 TO:

SB658,,36 Take notice that an eviction action has been commenced against you to recover the possession of the following described premises ...., of which I, the plaintiff, am entitled to possession, but which you have unlawfully detained from me.

SB658,,37 Unless you appear and defend on the .... day of ...., .... (year), at .... o’clock ..M., in the circuit court of .... county, located in the courthouse in the city of ...., before the Honorable ...., a Judge of said court, or before any judge to whom the action may be assigned, judgment may be rendered against you for the restitution of said premises and for costs.

SB658,,38 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS

SB658,,39 As provided under s. 799.425 of the Wisconsin Statutes, you have a right to counsel in the eviction action at public expense and, once referred to the state public defender, the state public defender shall appoint counsel for you under s. 977.08 of the Wisconsin Statutes without a determination of indigency, unless you knowingly and voluntarily waive the right to counsel. If you want counsel appointed for you, you must appear on the date specified above or contact the clerk of court on or before that date at .... (contact information) to request that counsel be appointed.

SB658,,40 Dated: ...., .... (year)

SB658,,41 .... Plaintiff

SB658,,42 By .... Plaintiff’s Attorney

SB658,11 Section 11. 799.20 (title) of the statutes is amended to read:

SB658,,44 799.20 (title) Answer; counterclaim and cross complaint; tenant request for counsel.

SB658,12 Section 12. 799.20 (1) of the statutes is amended to read:

SB658,,46 799.20 (1) Pleading on return date or adjourned date. On the return date of the summons or any adjourned date thereof, the defendant may answer, move to dismiss under s. 802.06 (2), or otherwise respond to the complaint or, if applicable, request the appointment of counsel under s. 799.425.

SB658,13 Section 13. 799.20 (3) of the statutes is created to read:

SB658,,48 799.20 (3) Tenant request for appointment of counsel. If, on or before the return date of the summons or any adjourned date thereof, a tenant in a residential eviction action contacts the clerk of court to request the appointment of counsel, the court or circuit court commissioner shall appoint counsel for the tenant under s. 799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).

SB658,14 Section 14. 799.20 (4) of the statutes is renumbered 799.20 (4) (intro.) and amended to read:

SB658,,50 799.20 (4) Inquiry of defendant who appears on return date. (intro.) If the defendant appears on the return date of the summons or any adjourned date thereof, all of the following apply:

SB658,,51 (b) If par. (a) does not apply or if the defendant who is a residential tenant is represented by counsel or waives the tenant’s right to counsel, the court or circuit court commissioner shall make sufficient inquiry of the defendant to determine whether the defendant claims a defense to the action.

SB658,,52 (c) If it appears to the court or circuit court commissioner under par. (b) that the defendant claims a defense to the action, the court or circuit court commissioner shall schedule a trial of all the issues involved in the action, unless the parties stipulate otherwise or the action is subject to immediate dismissal. In a residential eviction action, the court or circuit court commissioner shall hold and complete a court or jury trial of the issue of possession of the premises involved in the action within 30 days of the return date of the summons or, any adjourned date thereof, or the return date set when a stay under s. 799.40 (4) (c) is lifted, unless the parties stipulate otherwise or the action is subject to immediate dismissal.

SB658,15 Section 15. 799.20 (4) (a) of the statutes is created to read:

SB658,,54 799.20 (4) (a) In a residential eviction action, the court or circuit court commissioner shall make sufficient inquiry of a defendant who is a tenant and who is not represented by counsel to determine whether the tenant waives the tenant’s right to counsel as provided under s. 799.425 (1) (b). If the tenant does not waive the tenant’s right to counsel, the court or circuit court commissioner shall appoint counsel under s. 799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).

SB658,16 Section 16. 799.206 (3) of the statutes is amended to read:

SB658,,56 799.206 (3) When Subject to s. 799.20 (4) (a), when all parties appear in person or by their attorneys on the return date in an eviction, garnishment, or replevin action and any party raises valid legal grounds for a contest, the matter shall be forthwith scheduled for a hearing, to be held as soon as possible before a judge and, in the case of an eviction action, not more than 30 days after the return date.

SB658,17 Section 17. 799.207 (1) (a) of the statutes is amended to read:

SB658,,58 799.207 (1) (a) Any Except as provided in s. 799.20 (4) (a), a circuit court commissioner assigned to assist in small claims matters may hold a conference with the parties or their attorneys or both on the return date, examine pleadings, and identify issues.

SB658,18 Section 18. 799.207 (1) (b) of the statutes is amended to read:

SB658,,60 799.207 (1) (b) Except as provided in par. (e), and s. 799.20 (4) (a), the circuit court commissioner shall render a decision shall be rendered by the circuit court commissioner on the return date if there is time available for a hearing, the parties do not intend to call witnesses, and the parties agree to such a hearing. If, for any of the reasons stated in this paragraph, the matter cannot be heard on the return date, an adjourned date shall be set.

SB658,19 Section 19. 799.21 (2) of the statutes is amended to read:

SB658,,62 799.21 (2) Trial by court. If trial is to the court, the case may, with the consent of all the parties and subject to s. 799.20 (4) (a), be tried on the return day.

SB658,20 Section 20. 799.22 (2) of the statutes is amended to read:

SB658,,64 799.22 (2) When defendant fails to appear or request appointment of counsel. If the defendant fails to appear on the return date or on the date set for trial and the defendant has not requested the appointment of counsel under s. 799.20 (3), the court may enter a judgment upon due proof of facts which that show the plaintiff entitled thereto.

SB658,21 Section 21. 799.22 (4) (b) 4. of the statutes is created to read:

SB658,,66 799.22 (4) (b) 4. In a residential eviction action, if a defendant who is a tenant attempts to join issue without appearing on the return date, regardless of whether the tenant’s answer is proper under the rule, and if it appears that the tenant is not represented by counsel, the proceedings shall be automatically stayed until the court or circuit court commissioner makes the inquiry of the tenant described under s. 799.20 (4) (a).

SB658,22 Section 22. 799.40 (4) (c) of the statutes is created to read:

SB658,,68 799.40 (4) (c) The court shall stay the proceedings in a civil action of eviction against a residential tenant who is not represented by counsel if the tenant requests the appointment of counsel under s. 799.20 (3) or the tenant, in an inquiry under s. 799.20 (4) (a), does not waive the tenant’s right to counsel. If the court grants a stay under this paragraph, the stay remains in effect until counsel is appointed for the tenant under s. 799.425 (2) or (3), the tenant retains counsel of the tenant’s own choosing, or the tenant waives the tenant’s right to counsel as provided under s. 799.425 (1) (b), whichever occurs first. Notwithstanding s. 704.17 (4), the tenant is entitled to continued possession or occupancy of the residential premises while the stay remains in effect. When the court lifts the stay, the court shall set a new return date.

SB658,23 Section 23. 799.41 (1) of the statutes is amended to read:

SB658,,70 799.41 (1) The complaint in an eviction action shall be in writing and subscribed by the plaintiff or attorney in accordance with s. 802.05. The complaint shall identify the parties and the real property which that is the subject of the action, specify whether the real property is residential, and state the facts which that authorize the removal of the defendant. The description of real property is sufficient, whether or not it is specific, if it reasonably identifies what is described. A description by street name and number is sufficient. If the complaint relates only to a portion of described real estate property, that portion shall be identified. If a claim in addition to the claim for restitution is joined under s. 799.40 (2), the claim shall be separately stated. The prayer shall be for the removal of the defendant or the property or both and, if an additional claim is joined, for the other relief sought by the plaintiff.

SB658,24 Section 24. 799.425 of the statutes is created to read:

SB658,,72 799.425 Right to counsel in residential eviction actions. (1) Right to legal representation. (a) Except as provided in pars. (b) and (c), in an action of eviction against a tenant whose residential tenancy has been terminated for any reason, the tenant shall be afforded legal representation at all stages of the proceedings.

SB658,,73 (b) A residential tenant may waive the tenant’s right to counsel under par. (a) if the court is satisfied that the waiver is knowingly and voluntarily made and the court accepts the waiver.

SB658,,74 (c) A residential tenant is presumed to have waived the tenant’s right to counsel under par. (a) if the tenant does any of the following:

SB658,,75 1. Fails to request the appointment of counsel under s. 799.20 (3) and fails to appear on the return date or on the date set for trial as provided under s. 799.22 (2).

SB658,,76 2. Retains counsel of the tenant’s own choosing who enters a notice of appearance on behalf of the tenant.

SB658,,77 (d) In a proceeding under s. 799.14 (1) to set aside a judgment entered or for an opportunity to be heard upon the merits, a residential tenant who waived the tenant’s right to counsel under par. (b) or who is presumed to have waived the tenant’s right to counsel under par. (c) is entitled to legal representation under par. (a). If it appears that the tenant is not represented by counsel in the proceeding, the court shall make the inquiry of the tenant described under s. 799.20 (4) (a).

SB658,,78 (2) Power of court to appoint counsel. At any time, upon request or on the court’s own motion, the court may appoint counsel for a residential tenant entitled to legal representation under sub. (1) (a).

SB658,,79 (3) Providing counsel. If a residential tenant is entitled to legal representation under sub. (1) (a) and the tenant does not waive, and is not presumed to have waived, the tenant’s right to counsel under sub. (1) (b) or (c), the court shall refer the tenant to the state public defender, and the state public defender shall appoint counsel under s. 977.08 without a determination of indigency.

SB658,,80 (4) Discharge of counsel. If a residential tenant waives, or is presumed to have waived, the tenant’s right to counsel under sub. (1) (b) or (c), the court may discharge counsel.

SB658,,81 (5) Retained counsel. Notwithstanding subs. (1) to (3), a residential tenant is entitled to retain counsel of the tenant’s own choosing at the tenant’s own expense.

SB658,25 Section 25. 977.02 (2m) of the statutes is amended to read:

SB658,,83 977.02 (2m) Promulgate rules regarding eligibility for legal services under this chapter, including legal services for persons who are entitled to be represented by counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60, 55.105, 799.425, 938.23 (4), or 980.03 (2) (a).

SB658,26 Section 26. 977.05 (4) (gm) of the statutes is amended to read:

SB658,,85 977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept referrals from judges and courts for the provision of legal services without a determination of indigency of children who are entitled to be represented by counsel under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel under s. 51.60, 55.105, 799.425, or 980.03 (2) (a), appoint counsel in accordance with contracts and policies of the board, and inform the referring judge or court of the name and address of the specific attorney who has been assigned to the case.

SB658,27 Section 27. 977.05 (4) (i) 10. of the statutes is created to read: