LRB-0517/2
RPN&RLR:cjs&wj:pg
2007 - 2008 LEGISLATURE
June 14, 2007 - Introduced by Joint Legislative Council. Referred to Committee
on Veterans and Military Affairs.
AB400,3,10
1An Act to repeal 20.465 (4) (b), 20.465 (4) (g), 20.465 (4) (k), chapter 21 (title),
221.025 (2) (b), 21.025 (5) (c), 21.025 (7), 21.025 (13), 21.15 (title), 21.155 (title),
321.19 (title), 21.19 (3) (b), 21.19 (6), 21.19 (7) (a) (intro.), 21.20, 21.21, 21.25,
421.26 (title), 21.32 (title), 21.33 (title), 21.36 (title), 21.37, 21.42, 21.49 (1) (ae),
521.50 (3) and (4), 21.56 (title), 21.57 (title), 21.59, 21.60, 21.61 (title), 21.612,
621.616 (title), 21.62, 21.63, 21.70 (title), 21.75 (1) (a), 21.75 (1) (c), 21.78 (5),
721.80 (1) (f) and 21.80 (8);
to renumber 21.015 (1), 21.025 (title), 21.025 (2)
8(title), 21.025 (5) (title), 21.025 (11m) (title), 21.13 (title), 21.18 (title) and (1)
9(intro.), 21.18 (1) (a) to (c), 21.18 (1) (k), 21.18 (4), 21.26 (2) (b), 21.28 (title), 21.49
10(title) and (1) (intro.), 21.49 (1) (am) and (ar), 21.49 (1) (b) (intro.), 21.49 (1) (b)
111., 1g. and 1m., 21.49 (1) (b) 3., 21.49 (2) (intro.), (a), (b) and (e), 21.50 (title),
1221.51, 21.74 (8), 21.75 (1) (intro.), 21.75 (4), 21.75 (17), 21.75 (19), 21.80 (title)
13and (1) (intro.), 21.80 (1) (b) to (e), 21.80 (1) (g) and 21.80 (7);
to renumber and
14amend 21.01, 21.015 (title), 21.015 (intro.), 21.015 (2), 21.025 (1), (2) (a), (c) and
1(d), (3), (4), (6), (8), (9), (10) and (11n), 21.025 (5) (a) and (b), 21.03, 21.04, 21.05,
221.06, 21.07, 21.09, 21.11 (title), 21.11 (1), 21.11 (2), 21.11 (3), 21.12, 21.13 (1),
321.13 (2), 21.15, 21.155, 21.17, 21.18 (1) (d), 21.18 (1) (e), (f), (g), (h), (i) and (j),
421.18 (1m), 21.18 (2), 21.18 (3), 21.18 (5), 21.19 (1), 21.19 (1m), 21.19 (2), 21.19
5(3) (a), 21.19 (4), 21.19 (5), 21.19 (7) (a) 1., 21.19 (7) (a) 2., 21.19 (7) (a) 3., 21.19
6(7) (b), 21.19 (8), 21.19 (9), 21.19 (10), 21.19 (11), 21.19 (12), 21.19 (13), 21.19
7(14), 21.26 (2) (a), 21.28 (1), (2) and (3), 21.30 (title), 21.30, 21.32, 21.33, 21.35,
821.36 (1), 21.36 (2), 21.38, 21.43, 21.47, 21.48, 21.49 (1) (b) 2., 21.49 (1) (c), 21.49
9(2) (d), 21.49 (2) (f), 21.49 (2m), 21.49 (3), 21.49 (3m) and (4), 21.50 (1) and (2),
1021.52, 21.54, 21.56 (1) and (2), 21.57 (1) and (2), 21.61 (1), (3), (4) and (5), 21.616,
1121.70 (1) and (2), 21.72, 21.74 (title), 21.74 (1), 21.74 (2), (3), (4), (5), (6) and (7),
1221.74 (9), 21.75 (title), 21.75 (1) (b), (cm) and (d), 21.75 (2), 21.75 (3), 21.75 (5),
1321.75 (6) and (7), 21.75 (8), 21.75 (9) and (10), 21.75 (11), 21.75 (12), 21.75 (13),
1421.75 (14), 21.75 (15), 21.75 (16), 21.75 (18), 21.75 (20), 21.75 (21), 21.75 (22),
1521.75 (23), 21.78 (title), (1), (2), (3) and (4), 21.79, 21.80 (1) (a), 21.80 (2), 21.80
16(3), 21.80 (4), 21.80 (5) and 21.80 (6);
to consolidate, renumber and amend
1721.025 (11m) (a) and (b) and 21.26 (1) and (2) (intro.);
to amend 15.04 (2), 17.29,
1820.455 (1) (b), 20.465 (1) (e), 20.465 (1) (g), 20.465 (1) (i), 20.465 (2) (a), 20.465
19(4) (ka), 20.865 (1) (a), 20.865 (1) (g), 20.865 (1) (q), 40.05 (4g) (a) 4., 45.03 (13)
20(e), 45.20 (2) (d) 3., 45.60 (1) (b), 71.93 (1) (a) 6., 106.54 (7), 121.05 (1) (a) 13.,
21121.095 (title), 121.095 (1) (a), 121.095 (1) (b) 1., 121.90 (1) (intro.), 230.04 (17),
22230.315 (1) (c) and 230.32 (7);
to create 302.31 (1m), chapter 321 (title),
23subchapter I (title) of chapter 321 [precedes 321.01], 321.01, 321.02 (title),
24321.04 (title) and (1) (intro.), 321.04 (1) (b), 321.04 (1) (j), 321.04 (1) (m), 321.04
25(1) (p), 321.04 (2) (intro.), 321.04 (2) (f), subchapter II (title) of chapter 321
1[precedes 321.10], 321.10 (1) (e), subchapter III (title) of chapter 321 [precedes
2321.20], 321.21 (1), 321.23 (title), subchapter IV (title) of chapter 321 [precedes
3321.30], 321.39 (1) (a) (intro.), 321.39 (1) (a) 3., 321.40 (2) (f), 321.40 (6) (d),
4321.51 (2) (b), 321.51 (2) (e), subchapter V (title) of chapter 321 [precedes
5321.60] and chapter 322 of the statutes; and
to affect Laws of 1969, chapter 20,
6section 10;
relating to: powers and duties of the Department of Military
7Affairs, the adjutant general, military officers, military property and assets,
8the national guard, the state defense force, rights of service personnel, the
9Wisconsin code of military justice, making an appropriation, and providing a
10penalty.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's special committee on recodification of ch. 21, military affairs. The
special committee was directed to conduct a recodification of ch. 21, relating to military
affairs, to include reorganizing the chapter in a logical manner, renumbering and
retitling sections, consolidating related provisions, modernizing language, resolving
ambiguities in language, making other necessary organizational changes, and making
minor substantive changes.
Military Affairs
The bill does the following regarding military affairs provisions:
1. Moves the military affairs provisions of the statutes that are currently in ch. 21
to a newly created ch. 321.
2. Reorganizes the entire chapter by subdividing it into the 5 subchapters shown
in the table of contents set forth below. The current ch. 21 consists of 54 sections that are
not organized into subchapters.
3. Makes nonsubstantive editorial changes to modernize language to make the
language consistent with current drafting style.
4. Repeals several provisions considered no longer necessary. For example, one
section in current ch. 21 relates to the Badger Challenge program, a program that no
longer exists. As another example, a section is being repealed that allows the governor
to prescribe rules for issuing of property to bands.
5. Makes minor substantive changes. These include the following:
a. Modifying the current provision on legal defense of national guard and state
defense force members for actions taken in the line of duty. Currently, legal counsel is
appointed for state residents who are members of the state defense force or who are
members of the national guard of any state. This bill also includes members of the
Wisconsin national guard or Wisconsin state defense force who are not residents of
Wisconsin.
b. Raising the dollar amount of rent of premises from which specified family
members of a person may not be evicted while the person is in active state service, unless
there is a court order. Under current law, the spouse, children, or others dependents of
a service member who is in active state service may not be evicted from premises for which
the rent does not exceed $1,200 per month, unless there is a court order. The bill increases
this amount to $2,400 per month.
c. Increasing the amount of time for which a local governmental unit may grant
a leave of absence to an employee for federal active duty from 4 years to 5 years.
d. Adding to the military staff of the governor a joint chief of staff with a specified
rank.
Chapter 321, Department of Military Affairs, will be organized as follows:
-
See PDF for table 
Wisconsin Code of Military Justice
When the Joint Legislative Council's Special Committee on Recodification of ch. 21,
Military Affairs was convened to undertake the ch. 21 recodification, the Department of
Military Affairs (DMA) requested that the committee also review proposed legislation to
revise the current Wisconsin Code of Military Justice (WCMJ) which was being drafted
by a working group led by the staff judge advocate general (JAG) at DMA. This part of
the bill is based on that proposed legislation, with modifications to comport with
legislative drafting conventions and clarify the relationship of the WCMJ to other
provisions of state law. The bill places the WCMJ in newly created ch. 322, stats. To the
greatest extent possible, the bill retains the structure and language of the Uniform Code
of Military Justice on which the revised WCMJ is based, including use of parallel article
numbers, for easy transition from one code to the other.
The current WCMJ was enacted in ch. 20, Laws of 1969. That legislation also
created as s. 21.37, stats., which provides that the WCMJ shall govern the conduct of all
members of the national guard and any other military force organized under state law,
but that the revisor of statutes shall not print the code in the statutes. Over time, there
was concern that JAGs and others who utilized the code did not have ready access to a
written version of the code. According to DMA, many key provisions of the current WCMJ
are outdated and limit a commander's ability to adequately discipline those under his or
her command. Also, DMA expects that the increased activity of the Wisconsin National
Guard over the past few years, both within and outside the U.S., will result in a
corresponding increase in disciplinary and other military justice matters.
Under this bill, if an act or omission that is a nonmilitary offense violates both the
WCMJ and the criminal law, a civilian court has primary jurisdiction. In that case, a
court-martial may be initiated only if civilian authorities decline to prosecute or dismiss
charges, if jeopardy has not attached. Courts-martial have primary jurisdiction over
military offenses, as defined in the WCMJ.
The bill reorganizes and modernizes the current WCMJ and makes a number of
substantive changes. As examples of the substantive changes, the bill:
1. Updates definitions of terms such as "state military forces," "judge advocate,"
and "commanding officer" and creates definitions of a number of terms including "record,"
"military offenses," "enemy," and "unit training assembly."
2. Specifies a number of state criminal code chapters that do not apply to
proceedings under the WCMJ.
3. Clarifies that the WCMJ applies to members of the state military forces if they
are in a duty status or a nexus exists to the military.
4. Prohibits confinement of state military personnel with enemy prisoners or other
foreign nationals who are not members of the armed forces.
5. Eliminates current amounts for forfeiture of pay in nonjudicial punishment
cases and instead bases forfeitures on the accused's pay grade at the time of the offense.
6. Suspends the running of any statute of limitations until two years after
termination of hostilities under certain circumstances in court-martial cases when the
U.S. is in a declared war that is part of the global war on terror.
7. Establishes an affirmative defense of mental disease or defect in a court-martial
trial, parallel to the defense available under state law, and specifies procedures, including
those required of the state Department of Health and Family Services, for committing a
person for examination and treatment who is found incompetent to stand trial due to lack
of mental capacity.
8. Reduces the number of votes necessary to convict a person in a court-martial
from unanimous to two-thirds in most cases.
9. Provides that appeals of court-martial decisions are to the Wisconsin Court of
Appeals, District IV, and if necessary, to the Wisconsin Supreme Court, following
procedures under ch. 809. stats.
10. Expands the current offense of drunken or reckless driving of a vehicle to also
include operation of an all-terrain vehicle, snowmobile, aircraft, or vessel.
11. Specifies several offenses subject to court-martial that the current WCMJ
leaves to civilian courts, including such offenses as "rape and carnal knowledge,"
"forgery," "violations regarding controlled substances," and "housebreaking." The term
"controlled substance" is defined by reference to a definition in current criminal statutes.
Chapter 322, Wisconsin Code of Military Justice, will be organized as follows:
-
See PDF for table AB400, s. 1
1Section
1. 15.04 (2) of the statutes is amended to read:
AB400,14,62
15.04
(2) Deputy. Each secretary of a department or head of an independent
3agency under s. 230.08 (2) (L) may appoint a deputy who shall serve at the pleasure
1of the secretary or agency head outside the classified service. The deputy shall
2exercise the powers, duties and functions of the secretary or head in the absence of
3the secretary or head, and shall perform such other duties as the secretary or head
4prescribes. The adjutant general may appoint 2 deputies as
provided described in
5s.
21.18 (1) 321.10 (1) (b) and (c). In this subsection "secretary" includes the attorney
6general and the state superintendent of public instruction.
AB400, s. 2
7Section
2. 17.29 of the statutes is amended to read:
AB400,14,13
817.29 Effect of chapter. The provisions of this chapter supersede all contrary
9provisions in either the general law or in special acts, except ss. 6.26 (2) (b), 6.28 (2)
10(b), 6.55 (6), 6.875, and 7.30 relating to appointed election officials and
ch. 21 ch. 321 11relating to the military staff of the governor and to officers of the Wisconsin national
12guard or state defense force; and shall govern all offices whether created by general
13law or special act, unless otherwise specially provided.
AB400, s. 3
14Section
3. 20.455 (1) (b) of the statutes is amended to read:
AB400,14,1715
20.455
(1) (b)
Special counsel. A sum sufficient, subject to the procedure
16established in s. 14.11 (2) (c), for the compensation of special counsel appointed as
17provided in ss. 14.11 (2) and
21.13 321.42.
AB400, s. 4
18Section
4. 20.465 (1) (e) of the statutes is amended to read:
AB400,14,2019
20.465
(1) (e)
State service flags. The amounts in the schedule for the purchase
20of state
service flags pursuant to s.
21.19 (10) 321.04 (2) (d).
AB400, s. 5
21Section
5. 20.465 (1) (g) of the statutes is amended to read:
AB400,15,922
20.465
(1) (g)
Military property. The amounts in the schedule for rent of
23state-owned military lands or buildings used by, acquired for or erected for the
24Wisconsin national guard under s.
21.19 (2) 321.03 (2) (a), for rental of buildings and
25grounds maintenance equipment owned by the state and required to properly
1maintain properties supported by state-federal cooperative funding agreements, for
2the repair and maintenance of state-owned military lands or buildings, for the
3payment of municipal assessments related to state-owned military property and for
4the purchase and construction of new military property, real and personal. All
5moneys received on account of lost military property, from the sale of obsolete or
6unserviceable military property, from the sale of any state-owned military property,
7real and personal, under s.
21.19 (3) 321.03 (2) (b), from the rental of state-owned
8housing, or from the provision of housing-related services to military personnel shall
9be credited to this appropriation.
