Judicial Council takes first crack at changes to Act 235

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The Judicial Council recently voted to advance to the state Legislature a proposal to revise changes recently made by lawmakers to the state’s rules of civil procedure.

Last session, lawmakers enacted 2017 Wisconsin Act 235, legislation that made a slew of changes to the state’s civil-litigation rules. Those ranged from modifying the state’s scope-of-discovery provision so that it includes a proportionality requirement to giving losing parties in lawsuits the right to challenge class-action-certification orders within 14 days.

The Judicial Council, a 21-member body of lawmakers, judges, lawyers and other stakeholders in the state court system, had urged originally lawmakers to reject the changes, at least until the council had had time to study it. But the bill, following a few modifications, was passed by the Assembly last February and the Senate the following month. Walker signed it into law in April.

The Judicial Council’s latest proposal mostly concerns a provision inserted into Wis. Stat. 802.06 at the behest of lawmakers. The provision, Wis. Stat. 802.06(1)(b), stays discovery and all other proceedings for 180 days after certain motions, such as a motion to dismiss, are filed or until a court rules on those motions – whichever of the two happens last.

The change proposed by the council would have just three words removed from the statute: “and other proceedings.”

Member Tom Shriner said those words could inadvertently affect proceedings involving temporary restraining orders and injunctions in domestic-violence cases.

John Orton, a council member, also noted the words could cause trouble in divorces by stopping hearings for temporary orders. Such hearings often happen long before discovery proceedings and are used to temporarily resolve matters involving child support, custody and the physical placement of children.

“A defendant, in our view, might be able to grind those proceedings to a halt by filing a motion to dismiss,” Shriner said.

Michael Fitzpatrick, a council member who is an appellate judge, also noted that the three words in that statute appear, in some circumstances, to neutralize language from 2017 Wisconsin Act 369, a so-called lame-duck bill Walker signed in December. Among the things Act 369 does is give the Legislature the right to intervene in certain lawsuits if the constitutionality or construction of a statute is challenged.

“If there’s a motion to dismiss pending, then the legislative intent to be able to intervene in that case is stopped,” Fitzpatrick said.

“The Attorney General can make a motion to dismiss but there’s no way for the Legislature to intervene,” Shriner said.

“I’m confident that was not the Legislature’s intent,” Fitzpatrick said.

Shriner argued that removing the three words cited by the council would lead only to delays in discovery proceedings – a result which several council members said they believe was the Legislature’s original intent.

The council voted at its Jan. 18 meeting to send its proposal to the Legislative Reference Bureau so the agency could prepare draft legislature to be presented to leaders of the state Assembly and Senate. The proposal to repeal part of Wis. Stat. 802.06 is just one of many technical revisions the council expects to make in response to language found in Act 235.

“This one has a real potential for mischief that we want to address right away,” Shriner said. Follow @erikastrebel