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Judicial Council taking on prisoner litigation statutes

A Wisconsin Judicial Council committee is working on a proposal to tweak and reorganize state statutes for some prisoner litigation.

The proposal – which was discussed by the council’s appellate procedures committee Friday morning –would make the rules for prisoners wanting to challenge punishment or decisions by the Department of Corrections easier to find, committee member Meredith Ross said. It also would help judges by consolidating a mix of scattered statutes and case law into one place.

The committee received it as a project in October 2011, but Ross said they members have only worked on it for about a month. According to a memo drafted by her and Dane County Circuit Court attorney Matt Robles, the Legislative Reference Bureau first proposed consolidating the statutes – which were passed in the wake of the federal Prison Litigation Reform Act of 1998.

The committee is expected to parse through the changes, in hopes that the a bill is introduced and passed.

However, it still has a lot of work to do and the full council would have to approve it and find legislators to sponsor it, she said.

Committee members started going through the proposed changes during Friday’s meeting. One discussion involved moving the judicial review of a probation revocation proceeding to the county where the alleged crime happened. Currently, the law has judges in the county where the prisoner is held review the case.

Another discussion involved making clear that, by law, those being held in a prison before or after a Chapter 980 proceeding – which determines whether a sexually violent person should be committed to a mental health facility – are not considered prisoners and would not be bound by statutes that deal with a prisoner’s ability to request that a filing fee be waived.

That distinction caused several members to inquire as to what defines a prisoner. Still, most agreed the distinction should be made, even if someone who is committed is being held in a prison.

“Judges don’t want that confusion,” committee member Maxine White, a Milwaukee County circuit judge, said. “These are not criminals. These are civilly committed people.”

Committee members also discussed removing a requirement that prisoners attach documentation to show that they have exhausted all their chances for administrative review before filing a suit. A judge who finds that a suit has merit would require the prisoner to do that later in the case, according to the memo.

The committee will continue to discuss the proposed changes at future meetings.

Ross said they also plan to reach out to attorneys in Milwaukee and elsewhere. But, she said, the Department of Justice — which has a member on the committee — does not want to participate in the proposal.

The committee’s DOJ member, Greg Weber, was not at the meeting. According to an email attributed to DOJ spokeswoman Dana Brueck, the DOJ “is not reflexively opposed to statutory or administrative revisions” to prisoner litigation laws.

“However, we prefer to reserve the Department’s final support or disapproval until the Judicial Council’s work generates a final proposal,” according to the email.

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