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Madison lawyers keeping an eye on state budget

By: Erika Strebel, [email protected]//July 25, 2017//

Madison lawyers keeping an eye on state budget

By: Erika Strebel, [email protected]//July 25, 2017//

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Although the Wisconsin Supreme Court recently wrapped up its latest term, releasing its final decision for the period earlier this month and selecting which rule-change proposals it will hear next term, lawyers haven’t necessarily taken their eyes off the Capitol.

A great deal of attention is in fact being paid to the state budget, which is taking longer than usual to hammer out. The two-year spending plan was officially due on July 1, but the governor and the Republicans who control the two houses of the state Legislature have so far failed to reach common ground on various matters.

And the delays are not just affecting the state’s road transportation fund and other budgetary priorities that are at the center of much of the controversy. They are touching things that are of great import to the legal profession. Lawmakers, for instance, have yet to act on many of Gov. Scott Walker’s proposals concerning the State Public Defender’s office.

To some lawyers, the biggest question is not when the next budget will get passed. It’s whether some of the proposals that lawmakers will be asked to vote on in coming weeks and months belong in the state budget in the first place.

Andy Erlandson
Andy Erlandson

Andy Erlandson, a civil litigator at Hurley, Burish & Stanton, said he has seen legislators in the last two decades increasingly use the budget to modify state laws rather than introduce standalone legislation.

“I think that the substance and amount of public debate on issues has probably gone down, and I don’t know that I can attribute that to one party or another,” he said.

Unlike standalone legislation, law changes attached to budgets are not scheduled to be debated at public hearings. In some cases, lawmakers will take part in only a short discussion before voting to add a proposal to the state’s spending plans.

Even so, it would be unfair to accuse the budget committee, officially the Joint Committee on Finance, of accepting every proposal that’s up for addition to the budget. This year in particular has seen top lawmakers take out large sections of Walker’s proposed budget and send them to the Legislature to be considered as standalone bills.

In May, the panel responded to opposition from the legal community and others by rejecting a number of Walker’s proposals that would have eliminated certain statutory entities and requirements. Among other things, the provisions that were cast aside would have eliminated an independent board that reviews workers’ compensation, equal-rights and jobless-benefits appeals.

Still another proposal struck down earlier this year would have eliminated the statutory requirement calling for court reporters to be present at workers’ comp hearings.

Jonas Bednarek
Jonas Bednarek

Erlandson’s colleague, criminal defense lawyer Jonas Bednarek, said that many of the statutory changes that he has seen embedded in budget bills over the years have been detrimental to his clients. Among other examples, he cited changes that allowed the admission of hearsay evidence in preliminary hearings and“other acts” evidence in sexual assault cases.

“The effect is anti-criminal defendant,” Bednarek said. “(The laws) tilt toward the prosecution and tilts more.”

Erlandson, for his part, remembers being frustrated about 10 to 12 years ago when lawmakers used the state budget to modify the deadline governing how much time defendants in civil cases have to respond to complaints.

Before the change, defendants of all stripes were given 20 days to file a responsive pleading. Not until the adoption of the new law did differing rules start to apply different sorts of clients. Insurers now, for instance, have 45 days to answer a complaint.

Erlandson said he wished that lawmakers had not adopted the change without first pausing to look more closely at its likely consequences. One way they could have done that would have been to listen to people who, like him, use the rules every day.

“I would hope that these trends shift,”Erlandson said. “I just think you end up with better laws, a better organized court system and a more efficient and effective one – and it serves everyone’s interests.”

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