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The Third Branch

Legislative committees take on court topics

By Nancy Rottier, Legislative Liaison

The Legislative Council has organized and named members to seven interim study committees, as well as two steering committees. Four of the study committees relate directly to the work of the court system, and the Legislative Council named judges to be members of all four of those study committees. Study committees typically develop legislation for consideration during the next legislative session.

Chief Judge Donald R. Zuidmulder Judge Scott W. Horne

Chief Judge Donald R. Zuidmulder

Judge Scott W. Horne

Study Committee on the Review of Criminal Penalties, chaired by Rep. Rob Hutton (R-Brookfield). Sen. Fred Risser (D-Madison) serves as Vice-Chair. Chief Judge Donald R. Zuidmulder of the 8th Judicial District, and Circuit Court Judges Scott W. Horne of La Crosse County and David M. Reddy of Walworth County have been named as members. The committee is directed to review the penalties for misdemeanor and low-level felony offenses to determine whether current penalties are appropriate, whether any crimes should be classified, and whether any offenses are outdated or should be decriminalized.

At its first meeting, the committee received an overview of sentencing and crime classification from Professor Thomas Hammer of Marquette University Law School. Hammer traced the legislative history of determinate sentencing through the development to Truth in Sentencing and included an extensive description of the work of the Criminal Penalties Study Committee (CPSC) in creating the current classification system for felonies. Hammer also suggested some challenges and opportunities facing the committee. Challenges include the large number of misdemeanors, the broad use of minimum penalties in misdemeanors and the many obscure misdemeanors currently in the statutes. Among the opportunities are the ability to take a global look at the current system, the chance to plot a new classification system and the possibility of identifying obsolete or obscure misdemeanors.

Wisconsin’s problem-solving courts are among topics currently being examined by a Wisconsin Legislative Council committee. The Problem-Solving Courts, Alternatives, and Diversions committee, which met during August, is charged with studying the effectiveness, costs, and best practices of treatment courts.

Wisconsin's problem-solving courts are among topics currently being examined by a Wisconsin Legislative Council committee. The Problem-Solving Courts, Alternatives, and Diversions committee, which met during August, is charged with studying the effectiveness, costs, and best practices of treatment courts.

In addition to Hammer's presentation, the committee heard from Dodge County District Attorney Kurt Klomberg about his office's procedures and philosophy behind charging decisions. Finally, there was a panel discussion on crime statistics and trends with now former Director of State Courts A. John Voelker, Executive Policy Advisor Tony Streveler of the Department of Corrections and Washburn County Sheriff Terry Dryden. They presented data on reported crimes, prison population and average daily jail populations.

In order to expedite the committee's work, the chair created two subcommittees. The Subcommittee on Obsolete Misdemeanors is directed to identify misdemeanor offenses that may be repealed because they are obsolete or no longer relevant. At its first meeting, the subcommittee directed committee staff to identify misdemeanors that have not been charged in the last three years, crimes that can no longer be committed, whether a crime responds to a situation that still exists, and whether similar conduct is covered by multiple statutes.

The Subcommittee on Penalty Alignment and Organization is directed to make recommendations about aligning the penalties of misdemeanors so that crimes of similar severity have similar penalties and to determine whether any unclassified misdemeanors should be classified. Judge Donald Zuidmulder has been appointed as a member of this subcommittee. Judge Lisa K. Stark was invited to present to the subcommittee to explain the sentencing process and what considerations judges use to arrive at an appropriate sentence. The subcommittee preferred to stay with the current A, B and C class system, and it will not consider changes to some complicated misdemeanors such as OWI. Committee staff will prepare lists of unclassified misdemeanors grouped by the maximum number of jail days; the subcommittee will examine the crimes within each group to determine what recommendation to make regarding classification.

Judge Elliott M. Levine

Judge Elliott M. Levine

Study Committee on Problem Solving Courts, Alternatives and Diversions, chaired by Rep. Gary Bies (R-Sister Bay). Rep. Evan Goyke (D-Milwaukee) serves as Vice-Chair. Circuit Court Judges Mary Triggiano of Milwaukee County and Elliott M. Levine of La Crosse County have been named as members. The committee is directed to review more than 50 problem solving courts currently in operation in Wisconsin, the effect they have on recidivism, and the net fiscal impact of these courts. The committee is to determine their effectiveness, as well as their costs and possible savings to the criminal justice system. The committee will also be determining the appropriate role and structure of state-level training and coordination.

At its first meeting in June, the committee heard from Carson Fox, the chief operating officer of the National Association of Drug Court Professionals. Fox gave an overview and history of problem-solving courts, a survey of the various types of problem-solving courts and their exponential growth around the country. He emphasized the proven effectiveness of drug courts, noting they have been studied more than any other part of the criminal justice system. Fox stressed the importance of the 10 key components and fidelity to the drug court model. Another presentation was given by Ray Luick of the Department of Justice about the TAD (Treatment Alternatives and Diversion) program. He described the history and recent expansion of TAD from $1 million per year available for grants to $4 million now available. Luick also indicated there could be changes to the program to allow a wider range of offenders to be eligible and emphasized the need for funding for training and evaluation.

Judge Juan B. Colάs Judge David M. Reddy

Judge Juan B. Colás

Judge David M. Reddy

During the rest of the meeting, there were presentations by teams from the Dane County Drug Court led by Judge Juan B. Colás and from the Walworth County OWI Court team led by Judge David M. Reddy. The Dane County Drug Court team described the history and procedures of its court, along with the results they have obtained to date. Of interest is the dramatic shift in the last five years from crimes involving cocaine to those involving heroin. About 85 percent of admissions in 2013 listed heroin as their primary drug of choice. The Walworth County team described the 10 guiding principles for OWI courts and how their team is approaching and handling each principle. They have seen significant savings in jail bed days since the program started. Reddy also emphasized the problem of transportation because their county has very little public transportation available to their program participants. He suggested the committee look at a Missouri approach which offers a limited driving privilege for problem-solving court participants.

The July meeting of the committee included presentations from leaders and participants in problem-solving courts, including veterans courts, mental health courts and domestic violence courts. Michelle Cern, statewide problem-solving courts coordinator in the Director of State Courts Office, presented information on problem-solving court initiatives in Wisconsin. She described the number of problem-solving courts in Wisconsin, outlined the growth in that number in recent years, and showed the geographic distribution of these courts. She discussed funding of problem-solving courts and provided recommendations to the committee on ways to improve the courts moving forward. In response to a question, Cern emphasized the importance of training for county teams, so they can be adequately prepared and also suggested that there is a need for a deliberative planning process before launching a treatment court.

Kit Van Stelle, Principal Investigator of the University of Wisconsin Population Health Institute, which is part of the University of Wisconsin School of Medicine and Public Health, shared the results of the recently updated outcomes and cost-benefit analysis encompassing seven years of TAD activity across nine counties. The study analyzed the demographics and outcomes of participants in TAD programs, including an examination of incarceration days avoided and recidivism. The study found that TAD programs had a positive impact on both of those measures, and that every $1.00 invested in TAD yielded benefits of $1.96 to the criminal justice system through averted incarceration costs.

Streveler presented Wisconsin corrections data, including the types of crimes for which people are incarcerated, demographics of the prison population, and trends in these figures.

Sheila Malec, Coordinator of the Eau Claire County Mental Health Court, and two of the program participants made a presentation about the process used by their court. Malec explained the process for intake and assessment, and made suggestions for ways to improve the mental health court system statewide. The participants described the circumstances leading up to their involvement with the mental health court, their experiences in the program, their successes, and their prospects for moving forward upon completion of the program.

Annie Levknecht, the coordinator of the Outagamie County Mental Health Court and Veterans Court, described their problem-solving courts, and discussed state-level resources related to it. She emphasized the need to devote sufficient time for program planning prior to submitting a grant for funding.

Melissa Giebel of the Harbor House Domestic Abuse Program and Danna Hibbard of the state Department of Corrections testified about the Calumet County Domestic Violence Court. Giebel noted some of the challenges faced by their small county, including no funding for the court programs and the lack of treatment providers and transportation. Hibbard explained the referral process, and indicated that the program would benefit from a coordinator.

Judge Michael J. Piontek

Judge Michael J. Piontek

On the issue of veterans courts, the committee also heard from the 2nd Judicial District Veterans Treatment Court team led by Judge Michael J. Piontek. The group presented information regarding the history of the court, as well as eligibility and demographic data of those served. They discussed the reasons for developing alternative justice procedures for veteran populations and the training process for drug court personnel.

Finally, the committee heard from Richard Bryant, the case manager of the Dane County Drug Court, who appeared with two program participants, one from the drug court and one from the OWI Court. They discussed the outcomes they had achieved as a result of their participation in the court programs. Bryant explained the process for review and intake, and indicated that the opportunity for expungement would provide valuable added incentive for participants.

Bies discussed the committee's charge and solicited suggestions from the committee members for future discussions. The Legislative Council staff will summarize suggestions made by members for discussion at the committee's next meeting on Aug. 20. The court system submitted a list of its recommendations.

Study Committee on Adoption Disruption and Dissolution, chaired by Rep. Joel Kleefisch (R-Oconomowoc). Rep. Fred Kessler (D-Milwaukee) serves as Vice-Chair. Circuit Court Judge Mark A. Sanders of Milwaukee County is a member. The committee is directed to study the extent of adoption disruption and dissolution in Wisconsin and the efforts in Wisconsin to prevent it. The committee will consider legislative options for tracking the number of and reasons for such adoption issues and ways of meeting the needs of adoptive children and parents if this occurs.

Judge Mark A. Sanders

Judge Mark A. Sanders

At its July 22 meeting, the committee heard from Susan Conwell, Executive Director, Kids Matter Inc., and Amanda Salas, an adopted child. Salas read the testimony of an adoptee from Russia who was removed from her adoptive home after two years of abuse by her adoptive parents. She said that she was isolated from the family and was refused basic needs. Salas told her own story of being adopted by an abusive stepfather's brother and suffering physical, emotional, and sexual abuse for seven years. She said that her family portrayed her to others as a troubled, mentally ill child, so her allegations of abuse were never believed when she sought help. Conwell described cases in which a child is adopted by an older caregiver who dies or becomes too ill to care for the child. She said that the state's data system for child welfare cases does not have accurate information on adopted children who enter or return to the child welfare system, are runaways, or are put under another person's guardianship and also said the data on out-of-home placements of children who have been adopted internationally is incomplete.

The committee also heard from Pat Ann St. Germain, the director of Healing Hearts Family Counseling Center. She provided information on the core issues of adoption, the needs of adoptive children, and the domains of some of those children's impairments. She said that the causes of adoption disruption relate to parental capacity, including expectations and the ability to adapt to what the child and family are experiencing, insight into what is going on with the child and in the family and commitment to an enduring relationship with the child. She recommended better assessment of parental capacity, more training about different types of parenting, recognition that parental history influences a parent's capacity to learn to parent in a new style, and more intensive post-placement support.

Chair Kleefisch asked committee members about specific issues for future consideration. The following issues were mentioned and will be further explored at the committee's Aug. 26 meeting:

Judge Gerald R. Ptacek Judge Michael R. Fitzpatrick

Judge Gerald R. Ptacek

Judge Michael R. Fitzpatrick

Study Committee on Transfer of Structured Settlement Payments, chaired by Rep. Jim Ott (R-Mequon). Rep. Dana Wachs (D-Eau Claire) serves as Vice-Chair. Circuit Court Judges Gerald R. Ptacek of Racine County and Michael R. Fitzpatrick of Rock County are members. The committee is directed to study the current method by which structured settlement payments are transferred in Wisconsin, how other states regulate the transfer, and recommend a statute for adoption in Wisconsin. The committee will consider items such as standards for disclosure of information to structured settlement recipients by entities seeking to purchase future settlement payments, the ability of parents and guardians to enter into structured settlements on behalf of minor children, and guidelines for use by judges in approving the transfer of structured settlement agreements.

At its first meeting on July 31 Ott described the committee's task as being two-fold: first, deciding whether Wisconsin should adopt its own law on transfer of structured settlement payments; and second, if the answer is yes, then how should that law be fashioned.

The committee first heard from Atty. April Southwick, the staff attorney for the Judicial Council. She explained the history of the request to the Judicial Council to adopt a transfer of structured settlement law in Wisconsin. She said the Council was requesting this committee study the issue because there are many policy questions to be answered that would be inappropriate for the Council.

The committee next heard from Ptacek and Fitzpatrick, who described the structured settlement transfer process from their perspectives as circuit court judges. Fitzpatrick observed that cases typically fit a pattern in which the buyer is represented by an attorney, who drafts the documents, and the seller is not represented. Judges encounter numerous challenges applying the current law in this area, leading to inconsistent application across the state. They suggested that a state statute would be of benefit. The statute should contain clear standards, or guideposts, for judges to apply, and perhaps a list of factors to consider. They recommended that the statute should attempt to avoid placing the judge in the role of an advocate. The judges suggested that the statute address procedural issues, such as who will pay costs and whether the state should be made a party, as well as evidentiary issues related to presumptions, evidence, and the burden of proof. Ptacek stated that concerns related to protection of the best interests of the purchasers must be balanced against the principle of freedom of contract.

The committee next heard from Earl Nesbitt, the Executive Director and General Counsel of the National Association of Settlement Purchasers (NASP), a trade association for companies who participate in the secondary market to purchase structured settlement payments from payees. Nesbitt explained the history of the negotiations between stakeholder groups, including NASP and the National Structured Settlements Trade Association (NSSTA). The negotiations resulted in a compromise embodied in what became the National Conference of Insurance Regulators (NCOIL) Model Act. Nesbitt provided details about aspects of the secondary market, including pricing and discount rates, which are based on factoring and actuarial calculations. He spoke in support of the federal law and the adoption of the NCOIL Model Act by the states.

The committee also had a presentation by John McCulloch, the national marketing director for EPS Settlements Group. He was representing the perspective of NSSTA, a trade association representing stakeholders in the primary market. NSSTA fully supports the NCOIL Model Act, although McCulloch also suggested Wisconsin consider adopting the "Revised Model Act" that contains some changes to the original model act. McCulloch described the features of the Revised Model Act and provided information regarding the implementation of its provisions in the states.

The final presentation was by Brenda Bierman, a senior claims technical specialist for Sentry Insurance. She explained the steps in the claims process that may occur from resolution of a claim via structured settlement, through a factoring transaction, to the redirection of the transferred payments. Bierman provided background information about the role of the annuity issuer in the transactions and clarified the roles of the other parties involved.

In the discussion of the committee assignment, the committee members generally agreed that the state would benefit from the passage of a statute regarding structured settlement transfers, and that the committee would proceed with preparation of a draft bill. Among other suggestions, committee members stated they would consider options for provisions regarding payees who are minors or incompetent persons, including persons who are borderline incompetent, as well as the repayment of past-due child support and other obligations.

Full committee membership and all committee materials of the study and steering committees are available on the Legislature's website at: https://docs.legis.wisconsin.gov/misc/lc/study/active. Click on the committee you are interested in. The website also contains the taped proceedings of the meetings.

For more information, contact Legislative Liaison Nancy Rottier, nancy.rottier@wicourts.gov or (608) 267-9733.

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