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.
WISCONSIN LAW JOURNAL: Let’s move to the family law realm and take a look at Act 443, which involved some significant reorganization of Chapter 767. Attorney Glowacki can you talk a little bit about what some of the substantive changes were?
THOMAS R. GLOWACKI: I think the introduction to the bill says it’s not the intent to change the substantive law. … What happened in Ch. 767 over time was things got added on, and there were all sorts of concepts in it that weren’t there when the original act was passed.
It became a mess in terms of reading the thing and sometimes finding out what the law really is. If you go through it, there are a lot of little sub 2ms and things like that that got added in. The child support standards are new since 1978. They’re tacked in to that. There were a number of revisions for domestic violence and … recent changes in the statutory law about maximizing placement time. So things kept getting added on to the statute, and it looked like one of those stretches of road that was all patches and no original pavement anymore.
It’s all been disassembled, shaken around, and renumbered and reordered. And everything now reads smoothly, and you can get everything you need to know about whatever issue you’ve got in one place.
I was dealing with a problem and by mistake found the answer in a different section of the statute. The answer I wanted wasn’t where it should have been. So that’s an example of the kind of problems we’ve had. … As of Jan. 1, it’s all logic.
WLJ: As of Jan. 1, we’re going to have a uniform statute that’s going to clearly lay everything out?
GLOWACKI: Right. If you have a child support question, all your child support answers are in one place. … So ideally it’s all the same pieces but now in a different order.
WLJ: What about Act 130, which has to do with Uniform Child Custody Jurisdic-tion and Enforcement?
GLOWACKI: It’s the new Chapter 822. It replaces the old Uniform Child Custody Jurisdiction Act. The UCCJEA is a uniform law that dates back about eight years now, so Wisconsin’s sort of at the tail end of the states adopting it, so it puts us in step with the rest of the country. … We’re on the same law now with almost all the other states.
My take on it is that it’s going to be a lot harder to change jurisdiction now than it was under the old act. There are some real disincentives — mandatory attorneys’ fees, assessments on the losers. So you’re going to need to think hard about challenging jurisdiction now because you have some nasty consequences waiting for you.
|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.|
WLJ: What should lawyers consider?
GLOWACKI: Some of the old definitions are pretty much the same. … But I think you’re going to have to really go back into the history of what’s happened since the divorce or during the marriage — why is mother here, why is father there, where is the child and why. And the language about how it is the child got to Wisconsin or got to the other state is stiffened.
There’s going to be more of a look at the motives behind taking a child from one state to the other and more consequences, again, if you’re wrong and trying to get jurisdiction someplace else. They’ve also brought in some domestic violence considerations, which makes it a little more consistent with what we’ve been doing in other areas of family law.
WLJ: What are some other significant pieces of legislation that come to mind?
REP. PEDRO A. COLÓN: There are a few that didn’t make it because they were vetoed and the veto was upheld, but passed both houses — AB 778 and SB 402, which is lead paint legislation. Then we have “all sums” legislation, which is AB 222. … I think what these two bills have in common is that they’re trying to take a very specific situation and alter the judicial result. …
The problem is clear. In the case of “all sums,” it had to do with a dispute between cleaning … and I believe it was the paper manufacturers who wanted to consider any type of agency enforcement by the EPA or anything a legal action that would be considered in lieu of a complaint. That way the attorneys’ fees would start being paid, and it would also alter the way in which liability was parceled out between all these insurers.
I thought the legislation was ill-conceived. …
In the case of lead poisoning, it was the [Steven Thomas, et al. v. American Cyan-amid Co.] case. Immediately after the Supreme Court ruled, they came to the Legislature and tried to overturn that case. It didn’t have a broader tort reform purpose other than to overturn one case for one plaintiff. I think you’re seeing more of these bills.
This was unlike what Representative Gundrum did with the Avery Task Force, which was correctly done. He took a Supreme Court case about how we record police inquiries or police interrogations and sort of outlined that and talked about that. That was the correct use of the legislative function.
But in this [Thomas] case it’s the absolute opposite. There’s really no broader policy statement even if it is good for business. In these bills what you seem to have is — it’s good for my business today. And that’s really troubling. So I think, you know, that’s one of the biggest challenges right now in the Legislature. …
CATHERINE A. LA FLEUR: If I could just echo a couple of his points. One of the bills he was referring to is Assembly Bill 968, Senate Bill 518. And that was a Department of Revenue reform that was really quite reactionary and heavily pushed. And the effect if that had passed — Sandy Pendleton had a case pending, Butcher v. Ameritech. It was a class action. And that bill actually had retroactive language that would have created the dismissal of his currently pending class action
suit, and that’s a little bit reactionary.
The other experience I had and was able to present to the Judiciary Committee on frivolous lawsuits, that was Senate Bill 501, Assembly Bill 855. And at the same time, Senate Bill 447, Assembly Bill 843, on punitive damages was presented.
Being someone that is more of a purist in the law and not in politics, I was really surprised at my experience there. After sitting for about two and a half hours waiting for my turn, I got about three minutes before they all had to run out. Because of that, I wanted to sit down with some legislators and talk about the frivolous lawsuits bill.
While one on the Democratic side agreed to sit down with me, once I did so he admitted he hadn’t read it and was really just angry at the Supreme Court for … revising the statute, which was a procedural rule which most people understand that they can do. So I really couldn’t have a dialogue there.
On the Republican side, I placed a call, and the lobbyist at the State Bar on my behalf placed a call. And I just wanted an audience, whether in person or by telephone. Our calls weren’t even returned. …
With regard to the punitive damages bill, I was just astounded when it was presented before the Judiciary Committee. Because the legislator that presented it actually said that he does not believe in punitive damages, and he is introducing this bill. And I thought, what happened to constituents? Some of the questions from the Judiciary Committee were very insightful, asking things like … we understand that there’s [Patricia Wischer, et al. v. Mitsubishi Heavy Industries America, Inc.] and there’s [L. Strenke v. L. Hogner], two cases that have given punitive damages lately. And in both cases there were reasons that the courts did so.
But the question was — in the past 10 years, what has been the track record with punitive damages? Have they been escalating? Have there been tons of them? There was no research. There was nothing that anybody could provide on the history of punitive damages in the past 10 years.
As someone who loves the law and considers myself somewhat of a purist in the law, I’m really disappointed by the lack of separation of powers and what seem to be retaliatory actions between the Legislature and the Supreme Court.
REP. MARK D.GUNDRUM: The reality is this session has been very reactionary by the Legislature and that is because the Supreme Court turned very reactive. The frivolous claims law that you were referring to, the Supreme Court got a majority to declare that it was procedural, but it was substantive. It was a substantive statute that they just declared they were repealing, they were rewriting. That’s not what courts do. Legislatures repeal their statutes. Legisla-tures rewrite their statutes. That certainly was out of the bounds of what they should have been doing.
And as a result, they did it to favor attorneys while leaving the little guy out there holding the bill when you have frivolous claims that are brought forward. … That’s why I thought that bill was important. I thought it was very out of line what the Supreme Court did.
Punitive damages? Again, when you talk about what was brought forward in the last 10 years, all the problems with the bill — or punitive damages coming forward, the issue was whether the Supreme Court was out of line again in its interpretation of that language. And we tried to put it back into what we thought was the intent of punitive damages back in 1995, when they’re intentional acts, not just gross negligent acts, which is essentially the new standard that the court put in place.
You have the medical malpractice, [which was] fine for 10 years. Then suddenly you get a majority of four justices with a more liberal view. They strike it down. Same thing with lead paint. It’s just one thing after another. As a result, yes, we were reactionary. We were reactionary not because we weren’t respecting separation of powers, but because the Supreme Court wasn’t. …
One thing I do agree with Pedro on completely was the “all sums” legislation, which I do think was out of line. I stood up on the floor of the Legislature to say exactly that and joined with my Democrat attorney brethren. … I thought that was a reverse, where the Legislature was overstepping its bounds in the separation of powers and delving into a realm that was the Judiciary’s responsibility, which essentially was interpreting contract, not having a Legislature come in 50 years later and rewriting the terms of a contract effectively to favor one business entity over another. …
BETSY J. ABRAMSON: I think one of the morals of this story also that we’ve been talking about this afternoon is … seriously, carefully crafted legislation that had the involvement of a lot of people who actually work under the law. [For example] family law attorneys who knew their Family Law Chapter 767 was disorganized and wasn’t practically working and couldn’t find answers.
The same thing happened with the folks who worked under the guardianship and adult protective services. You had a lot of involveme
nt of the practicing bar or Legislative Council committees with expertise as opposed to the couple of bills … that came out of one person’s one issue kind of thing and were not looked at in a comprehensive way with the ramifications.
The moral of the story is that lawyers cannot afford to sit back and learn the law after it passes, we have to be involved and be tracking these things better and offer assistance early on. …
WLJ: What should attorneys be doing to keep track of what’s going on, and what should they be doing if they want to get involved in these things?
COLÓN: I think legislation is the ultimate litigation. It is an adverse process without rules of evidence and without a set place. That’s part of the reason I love it; ultimate litigation. But I think there’s a misconception between the two groups. If you ask me as a legislator, is my concern to care about the stability of family law, I can tell you that my constituents don’t elect me to do that. Do my constituents really care about “all sums” and turning back a Supreme Court decision? I can tell you that my constituents probably don’t have anything to do with that either. …
I think there’s a tendency in the legal profession to say, well, that’s happening over there; that’s all politics; that doesn’t matter. At least that’s what I feel, but it does matter. It’s happening here. And it’s not any dirtier than any other litigation you’re involved in.
GLOWACKI: Well, I disagree with that in a lot of respects. It is dirtier, and it’s not litigation. Because if you and I are in court and one of us wants to argue a position, we have to have these inconvenient things called evidence. … But I’ve testified a number of times. And I’ve seen special interest groups coming in before these committees, and there are 45 of them in the back of the room wearing their T-shirts and relating anecdotes, and you don’t have the other side of the story. … And you have one or two people from the section of the bar that’s affected by this legislation … you’re this lone voice.
It can be very frustrating to sit there and hear 45 anecdotes basically from people who many times are, quite frankly, losers and have people on this committee buying into these stories. And they don’t have the context of how things work. And I’m sitting there furiously rewriting my testimony as this day goes on. Then I get in at the end.
Somehow, so far, we’ve only passed good bills as far as the Family Law Section is concerned in this last session. But, boy, it was scary sometimes.
LA FLEUR: Part of the problem is in the 2005-2006 legislative cycle, there were 1,226 Assembly bills and 733 Senate bills. In the session before, there were 998 Assembly bills and 569 Senate bills. One of the problems in trying to keep up with those — as good as the State Bar is with their lobbyists at least giving you notice — there were so many bills this time that were fast-tracked. …
As the chair of the Litigation Section, I would get notice of a bill and be told that within three days maybe it was going to be up. How do you get mobilized? How do you get a person up to Madison to be prepared to testify?
When I testified on frivolous [lawsuit legislation], there was an attorney there who completely misrepresented the text of the bill and said that under no circumstances would a litigant be able to recover fees for a frivolous action. There are two separate parts within the text of the statute that do provide for that.
A lobbyist for CTCW came up to me afterwards and said, you said the opposite of him; what’s the deal? And I just flipped open my binder. I had the evidence with the two fee provisions highlighted. So with the lack of notice and time that we have to get mobilized to get up there to make sure that everybody can be educated and when the legislators are looking at so very many bills, Betsy, I don’t know how we do what you think is appropriate and I would agree is appropriate and have things fully discussed, fully analyzed, fully evaluated.
ABRAMSON: I think it’s really important for members of the bar to develop relationships with their legislators, individuals across the state. … And we can’t pick one party over another. Everybody votes on them. You have to know that when you do make a call, like Cathy said, you are going to get it returned because you’ve developed a relationship beforehand and, when they look in their Rolodex or their staff does, under litigation or under pleadings or whatever, they look you up and you are a trustworthy source. …
MARK E. HERSH: I think it’s ironic that so many nonlawyers are writing our laws. And one of the things that I was thinking of first is, what can lawyers do to make sure that we have good legislation? Maybe they should run for the Assembly or the Senate.
COLÓN: Well, I feel outnumbered now. But you’re right. … Some of the misleading testimony is from attorneys who are practicing law, which I find kind of interesting from my perspective. …
And that’s what I mean. There are no rules of evidence. What do you do? It’s his First Amendment right to come and testify to whatever he or she believes ought to be testified to. My role is not to judge whether it fits the confines of the statutes.
Having said that, I think most legislators work really hard. …
ABRAMSON: It’s one of the branches and lawyers cannot ignore the Legislature. I have talked to so many lawyers who had experiences like you had, Cathy, after a legislative hearing and say, I am never going back there; there weren’t rules of evidence; I waited all day; it didn’t make any difference. And they’re really frustrated by that.
But we ignore it at our peril. I think it’s important to be there and develop those relationships and find somebody who can do it.
GUNDRUM: I’ve said many times this past spring that if I was Speaker, we wouldn’t allow any bills that were not truly emergency situations being introduced after the end of January. It’s kind of ridiculous that we’re still introducing them at the beginning of March to be voted on within two weeks and go through both houses, etc. So I can’t really defend that practice. I’m not going to pretend to because I don’t think that allows any time for thoughtful input from the public, and I’d like to see that sort of thing change.
But I do want to mention very briefly, just so the record is somewhat clear — and I believe it was Catherine who was talking about the frivolous claims and punitive damage bills about trying to meet with people. I was the author in the Assembly of those pieces of legislation, and I did spend a substantial amount of time with a very high-ranking member of WATL discussing the legislation. So to think and suggest that no time or attention was given to the matter or listening to people from the other side would be an inaccurate characterization of that.
Secondly, I also was trying very much to work with one of the Democratic members of the Judiciary Committee. We were working in a wonderful bipartisan fashion and, quite frankly, close to having an agreement until that member … got marching orders, so to speak, from the trial boss. He immediately stopped discussing it with me and effectively said, it’s not going to happen, Mark; can’t do it. And we were very close to having some very rational compromised legislation on those two items, frivolous claims and punitive damages.
I think the end result was the trial bar saw that they had Jim Doyle and could get vetoes. They didn’t need to compromise, didn’t need to negotiate.
GLOWACKI: If I could pick up on one thing Betsy said about building relationships and also end the self-flagellation of lawyers here. There’s a lot that we could do better as lawyers in working with the Legislature. But as bad as we are, in my experience we’re better than everybody else. I’ve gone up and testified on bills. And there’s a lot of related professional fields, the family law, the social workers, family court counselors, psychologists, all of that. And those groups are never there. They complain about it the morning after when they read in the paper what happened yesterday in the Legislature. … And we need to work with those other groups. We need to get them interested because they’re just, in my experience, not involved.
COLÓN: I tend to agree with you. I think lawyers by and far are proportionally not as involved as they should be. But, in proportion to other segments of society, are very involved and very well-intentioned, independent of where they’re coming from.