Legislative Changes Roundtable Discussion

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Roundtable participants (front) Betsy J. Abramson, Catherine A. La Fleur, (back) Rep. Pedro A. Colón, Thomas R. Glowacki, Mark E. Hersh, Rep. Mark D. Gundrum (Not pictured)

During its 2005-06 session, the Wisconsin Legislature handled more than 1,200 Assembly bills and more than 700 Senate bills. That session featured a number of significant changes in the law of which lawyers practicing in the state should be aware.

Given that volume of legislation, there was no way for a panel to begin scratching the surface of all the changes or the bills which failed to pass. However, Wisconsin Law Journal editor Tony Anderson sat down with a group of lawyers and legislators from diverse practice areas to highlight a few key changes. Part I of our discussion looks at changes in adult guardianship and protective services, the cap on noneconomic damages in medical malpractice cases, and the sentencing of sex offenders who abuse children.

WLJ: What are some of the significant elements that need to be taken out of those changes?

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Catherine A. La Fleur of Halling & Cayo SC in Milwaukee is a civil litigator. She handles civil litigation and does guardian ad litem work in family court. She also does family mediation, other mediation. She is the State Bar Board of Governors liaison for the Litigation Section.

Mark E. Hersh is a criminal defense attorney at Mark E. Hersh S.C. in Glendale. Hersh is the chair-elect of the State Bar Criminal Section

Betsy J. Abramson is a Madison attorney, who practices elder law. She is an advisor to the State Bar Elder Law Section. She was involved with the guardianship reform legislation, which passed last session.

Thomas R. Glowacki is a partner at Hill, Glowacki, Jaeger & Hughes in Madison. He practices in the areas of family law including divorce and guardian ad litem representation, litigation, small business representation, real estate, estate planning and probate, and guardianship.

Rep. Pedro A. Colón is a state representative for Milwaukee’s near south side. He is also an attorney at von Briesen & Roper in their litigation group. He was originally elected to the Assembly in 1998 and has been re-elected since.

Rep. Mark D. Gundrum is a state representative for New Berlin. He also is an attorney at Hippenmeyer, Reilly, Moodie & Blum S.C. in Mukwonago. Gundrum was elected to the Assembly in 1998 and has been re-elected since.

ABRAMSON: There are some new time procedures for when courts have to handle the cases by. There’s a new standard for emergency protective placement. It used to be that only by the personal observation of a sheriff or a guardian or law enforcement that you could take someone in for protective services. Now it can be based on a reliable witness. … This covers both adults ages 18 to 59 with some kind of mental disability as well as those 60-plus. So that’s a major change.

And there are changes in the duties of guardians ad litem who serve in the adult guardianship and protective services systems, having them determine the fitness of the proposed guardian, determine whether or not the proposed ward or protective place should be present at the hearing — not to waive that lightly, but to make a decision about that.

And there are a lot of changes in definitions. We’ve updated terms. We used to use the term “
infirmities of aging.” Now we use “degenerative brain disease.” We’ve updated terms related to mental illness and developmental disabilities. Those are some of the changes in Act 264 … [which] will become effective on Nov. 1.

WLJ: What about Act 387?

ABRAMSON: Act 387 is the entire change to guardianship. … It becomes effective Dec. 1. And it’s such a massive change to adult guardianships that, in fact, it’s no longer going to be Chapter 880 of the statutes. Every provision was either revised or deleted or moved. It’s all going to land in a new Chapter 54.

This changes definitions, procedures, roles of guardians ad litem. [It clarifies] the powers and duties of guardians.

We … have an assumption that all rights are assumed removed unless retained. We’re going to flip that presumption now. And there have to be specific findings why you would remove or transfer any rights of incompetent individuals.

We don’t call people “an incompetent” anymore. We’re going to call them “individuals found incompetent.” And we’re looking at a totally functional definition of “incompetency,” not that they have a label: Alzheimer’s, Down’s syndrome, but rather how that affects their ability to receive and communicate information and make decisions that will keep them personally safe or financially safe. So those are the major changes in guardianship.

WLJ: What prompted those changes?

ABRAMSON: It had been a few decades since we’d ever updated those. The practicing bar was extremely frustrated with the guardianship system, knew it was not as protective of folks with mental disabilities as it should be. And the statutes were not in any kind of logical organization. … So it’s now labeled into subchapters, definitions, petitions, notices, the hearing, post-appointment matters. It forms a very logical, readable kind of statute now.

WLJ: Finally, what about Act 388?

ABRAMSON: Act 388 is the Adult Protective Services Modernization law. This recognition began with Department of Health and Family Services, then on the part of the Legislative Council, that we had protections in Wisconsin for children under our child abuse statute.

So we recognized we had a system of protecting children through our child abuse system. We had a reporting and response system for elders, age 60 and over. But it was based on old research and old theories that all abuse of older people happened because of caregiver stress. New research shows that there’s a lot of domestic violence and really nasty power and control issues happening with older people. And we didn’t have a system for vulnerable adults ages 18 to 59 that are being abused, neglected, or financially exploited by family members, caregivers, or strangers.

So we updated the elder abuse statute, which is Section 46.90, to reflect the newer research, newer findings, add in law enforcement components, and gave new tools to county adult protective service workers to be able to see vulnerable adults even where someone was blocking their access, etc.

Then we essentially cut and pasted that whole set of laws into Chapter 55 as well, so we have a parallel system for vulnerable adults ages 18 to 59.

WLJ: Last year, the Wisconsin Supreme Court found that the statute placing caps on noneconomic damages in medical malpractice cases was unconstitutional. The Legisla-ture responded by developing several pieces of legislation. One eventually went through and was signed into law. What contributed to the $750,000 cap passing and what led the Legislature to believe that this is going to withstand Supreme Court scrutiny?

REP. MARK D. GUNDRUM: Well, it’s actually just raw politics. I think the governor felt a fair amount of pressure to sign something in this area. And it’s just a matter … of negotiations, what number would he be willing to sign. And $750,000 was what ends up being the final number. So I think there’s nothing more sophisticated behind it than that.

But as far as the constitutional challenge in the future, this is just one of the saddest things, in my more conservative viewpoint, with judges taking liberties with statutes. There’s no way of knowing. It’s just going to depend on who are the four people in the majority on the Supreme Court.

If it’s four who have one view of this, it’s going to be found to be constitutional. If there are four who have a different view, then it’s going to be unconstitutional.

CATHERINE A. LA FLEUR: Well, it sounds like the separation of powers may be dead.

Originally, that bill was Assembly Bill 766. And it is disappointing to me that i
t comes down to being pure politics. The original bill placed a cap of $550,000 for persons under 18 and $450,000 for persons over 18. Supposedly, the Patients Compen-sation Fund could make recommendations on the caps every two years. But this legislation was silent on what would happen with those recommendations, so they may have really been recommendations without any teeth in them.

When Assembly Bill 1073 then followed Assembly Bill 766 — and, obviously, there’s a very strong lobby on behalf of physicians — and it was raised to $750,000 across the board, I don’t know that anybody could characterize this as a number necessarily the governor was satisfied with. I think in a lot of ways it is anticipated that this will be challenged again, and I think there are significant jurists and attorneys who believe that juries are able to adequately assess damages and that we don’t need to legislate the compensation of injured persons.

REP. PEDRO A. COLÓN: Everything is politics where we work. But I think when we say “it’s politics,” we mean that somebody somehow got their way. … I think there’s still strong disagreement about what the cap shall be. I think the cap has been prescribed as some kind of cost-containment effort on behalf of proponents for healthcare and other broader, bigger issues that we face. And I think this is just a small component of it.

This cap will be contested again. You can’t adjust it year to year, so $750,000 in five or 10 years from now, it’s going to look like a small number again. That’s going to be one of the immediate claims against it.

The other claim is that I don’t know the rationale — what was it? … [Justice Crooks] and the Supreme Court have said … we can have all these caps, but there has to be some kind of rational basis. I still don’t think that this bill provides a rational basis for the caps. … I don’t think this is a battle that’s going away. It’s just temporarily been taken off the table.

WLJ: Following the rape and murder of a young Florida girl named Jessica Lunsford, legislators across the country began developing legislation to deal with child sex offenders. That legislation has been referred to as Jessica’s Law.

In Wisconsin we passed Act 430, which establishes a mandatory minimum sentence for child sex offenses. What were some of the things that led to this passing, and what do we need to take away from this?

MARK E. HERSH: Act 430 was a compromise that was reached after a lot of negotiation. On the [State Bar] Criminal Section Board, we take a look at all criminal legislation that is pending and is coming forward. And every year we find something that we refer to as the “legislation de jour.” It seems over and over again one incident happens [and suddenly] we need a new law; the laws that we have aren’t good enough the way they are.

Jessica’s Law was noteworthy when it first came out because in our board we have criminal defense attorneys, prosecutors, judges, and academicians who all were against it. When it first came out it was talking about mandatory life sentences for repeat child sex offenders. And interestingly enough, the reason that we now have a compromise is because of the work of the prosecutors on behalf of changing that law.

Some of the problems that we had with the law as it was originally proposed were, first of all … some people in the State Fiscal Bureau figured it would take about an additional seven prisons to house all the offenders that would be incarcerated as a result of this. There was concern about the independence of the judiciary. Why do we even have judges if we’re going to just have the Leg-islature decide that in every instance of a certain crime, this is what’s going to happen? We could just have a computer on the bench where you could put in a punch card that says this is the crime and this is the punishment.

Other things that were brought up by the prosecutors were based on the concern for the rights of the people who were the alleged victims in these matters. Often-times, child sexual abuse involves a close family friend or a relative. There were concerns that with such Draconian punishments being mandatory, that victims wouldn’t come forward and report the crimes. There were concerns that because there was nothing to lose, a lot of cases that might have otherwise settled without a trial would have gone to trial and exposed the victims of these crimes to more trauma and having to testify in open court.

And when you first talk about child sex offenders, everybody has the first impulse, let’s just lock the door and throw away the key. But the situation is so much more complicated than that. There’s a whole range of conduct that can be described under any one offense. That’s what our judges do — they take a look at what happened in a particular case. They take a look at the character and the past of the person that’s been accused or convicted. And they choose from a range of sentencing options, what’s best in that situation.

WLJ: Where does this compromised act leave us?

HERSH:
Well, the compromised act leaves us with a mandatory minimum sentence that is much less. It’s expressed as a bifurcated sentence of at least 25 years, and then the judge is free to change from a long range of initial confinement … [to] perhaps a shorter period of initial confinement with a longer period of supervision.

Of course, we also have Chapter 980 in our state that deals with sex offenders that was there to allow for a civil commitment basically forever for people that were deemed to be sexually dangerous predators that could have dealt with some of these cases without the new law.

COLÓN: I’m usually with you. On this one, I wasn’t. … Given what happened a couple days ago in Milwaukee, I feel fine. It does have some exceptions if the violation does not involve sexual intercourse by threat or use of force and violence and does not involve intercourse with a victim who’s less than 12 years old. There are some conditions under which the judge can have some discretion. It’s tough, but that’s just the way it is.

[Editor’s Note: Four days prior to this roundtable session, an 11-year-old Milwaukee girl was reportedly sexually assaulted by a group of nearly 20 men and teens.]

GUNDRUM: I don’t think it’s been an inaccurate description of how this came to be and where the momentum came from and the like. The reality is, for whatever the reason, it seems now perhaps more than ever that the public out there has zero level of tolerance for child sex offenders. The reality is there are few laws out there that would be strong enough to satisfy a vast majority of the public with regard to this.

They want a person who actually assaults a child locked up and [the key] thrown away forever. It’s that simple.

I know we live in a very complicated criminal justice system where it’s not always that simple to deal with. In a practical day-to-day basis, you have victims who are very hesitant about coming forward or testifying. But from the public perspective, you could not be tough enough on people who molest children.

When you read more and more stories about people who are second-time, third-time, fourth-time child molesters, they just shake their head and are thinking, why are these people out for a second time, a third time, a fourth time.

The Legislature is a reactive body. Yes, we need to sit back and be deliberative and think things through very thoughtfully. But … we do need to be responsive to the public. Personally, as a father of several young children, you’re not going to find me having sympathies for individuals who sexually assault young children and wanting to give them second chances.

LA FLEUR: That point that you raised, how Chs. 980 and 430 kind of have some areas of equal applicability, is that still true with the modified act?

HERSH: Anybody who’s been convicted of sexual assault crimes and is found to be a sexual predator can be civilly committed regardless of what laws they were convicted of originally. And where Ch. 980 comes into play is at the end of the person’s sentence.

A couple more things, I think that what we were concerned about was not in giving a break to people who are accused of these offenses that everybody knows are heinous. But what we were concerned about was the overall administration of justice and the way our system works best.

It was shocking to me in a way that the prosecutors were leading the charge to change this and to get a modified version of it. They said we want to be able to look at the cases individually and use our discretion in order to charge them the way we think they should be charged. They were afraid that people in the prosecutors’ offices wouldn’t want to pull the trigger on the offense with such a Draconian harsh mandatory sentence there, that they would undercharge the cases.

And there’s always the fiscal outlook on this. Where’s the money going to come from to house all these people? There could be answers to that, but these things go through in a year. Nobody thinks them out.

This is something that maybe should have had a task force to look at it if they were really serious about it and take a look at all the ramifications of it. If this is what we want to do, how are we going to manage the trade-offs?

ABRAMSON: Of course I agree that the sexual assault of children is horrible. But we also have sexual assault of other vulnerable populations. And we don’t have a special law because, I guess, that didn’t happen in Florida yet. We’re part of a national study in Wisconsin of sexual assaults of people in nursing homes. And I think there were something like 20 reported cases of vulnerable adults sexually assaulted in a six-month period in nursing homes in Wisconsin.

I’m working on a case of a 96-year-old woman who was sexually assaulted when she was 94 by her grandson who was 48 at the time. I would imagine if we put these up
for a vote in the public, they’d want those people locked up and the key thrown away on them as well. So it’s that reactive thing that goes so fast that I think concerns us without thinking about whether we are doing something special and tying judges’ hands about one population over another and not thinking about the cost and the best treatment and just satisfying this public-revenge thing.

COLÓN: Your point is well taken. But just yesterday I was at Vieau School, which happens to be a grade school in my district. I was coming out and said hi to one of the parents, and they handed me a flyer in which the teachers told them how many convicted people of sexual offenses were living just in my ward.

The packet [contained information] about 12 people with pictures. If that’s what you have to live with and that is your first day of school — buy your pencils, buy your notebooks and, by the way, this is where all the sexual offenders are, just so that you know when your child walks to school — I think you’re going to lose a lot of people. I think this is one of the most difficult areas in the law, and we’re going to continue to see a lot of problems.

We can’t place these people. There’s nowhere to place them. In fact, we fought in the Legislature about this. … And it is true that most sexual offenses in the nursing home context are committed by people who are related.

ABRAMSON: Right. These offenses were not all by staff. It’s someone related. Or some of these sexual predators, you don’t know where to place them, end up in nursing homes and they’re assaulting people down the hall with dementia. And it’s not true that once they’re 80 they can’t harm anyone anymore. Oh, yes, they can — and they do.

HERSH: This is something that is just too complicated to address in a knee-jerk type of fashion. So many of these people that are charged with these sex crimes against children are oftentimes 17-year-olds that have 15-year-old girlfriends and things of this nature. I just received a call from somebody wanting me to defend them in Jefferson County, and these are young kids that are faced with long prison sentences as it is. I mean, it has to be said that the kind of crimes that we’re talking about have maximum penalties of 60 years, a bifurcated sentence as it is. And the judges have plenty of leeway to pick the ones that need to be put away forever and to weed out these young children.

Now, the Jessica Law, Act 430, says that it doesn’t apply unless the person’s 18 or older. So now if you had somebody that was 18 and had a 15-year-old girlfriend, it would be different than if they were 17 and had a 15-year-old girlfriend. But they would still be subject to very large penalties and being included in a sexual offender registry as well.

Part II of this discussion will appear in next week’s Wisconsin Law Journal.

Thank you to Gramann Reporting Limited for sponsoring this roundtable session. Gramann provided the services of Bobbie Peterson, RPR, to take down and transcribe the session. This article was edited for grammar, content and space.