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.
AB400, s. 6
10Section
6. 20.465 (1) (i) of the statutes is amended to read:
AB400,15,1311
20.465
(1) (i)
Distance learning centers. All moneys received from renting the
12distance learning centers, for the operation and maintenance of the centers under
13s.
21.19 (13) 321.04 (1) (n).
AB400, s. 7
14Section
7. 20.465 (2) (a) of the statutes is amended to read:
AB400,15,1615
20.465
(2) (a)
Tuition grants. A sum sufficient for the payment of tuition grants
16to members of the Wisconsin national guard under s.
21.49 (3) 321.40 (4).
AB400, s. 8
17Section
8. 20.465 (4) (b) of the statutes is repealed.
AB400, s. 9
18Section
9. 20.465 (4) (g) of the statutes is repealed.
AB400, s. 10
19Section
10. 20.465 (4) (k) of the statutes is repealed.
AB400, s. 11
20Section
11. 20.465 (4) (ka) of the statutes is amended to read:
AB400,15,2321
20.465
(4) (ka)
Youth Challenge Academy program; public instruction funds. 22All moneys received from the department of public instruction under s. 121.095, for
23the operation of the
Youth Challenge
Academy program under s.
21.26 321.03 (1) (c).
AB400, s. 12
24Section
12. 20.865 (1) (a) of the statutes is amended to read:
AB400,16,8
120.865
(1) (a)
Judgments and legal expenses. A sum sufficient to pay for legal
2expenses under s. 59.32 (3), for costs under ss. 227.485 and 814.245 and for the costs
3of judgments, orders and settlements of actions, appeals and complaints under
4subch. II of ch. 111 or subch. II or III of ch. 230, and those judgments, awards, orders
5and settlements under ss.
21.13, 165.25 (6),
321.42, 775.04 and 895.46 that are not
6otherwise reimbursable as liability costs under par. (fm). Release of moneys under
7this paragraph pursuant to any settlement agreement, whether or not incorporated
8into an order, is subject to approval of the attorney general.
AB400, s. 13
9Section
13. 20.865 (1) (g) of the statutes is amended to read:
AB400,16,1910
20.865
(1) (g)
Judgments and legal expenses; program revenues. From the
11appropriate program revenue and program revenue-service accounts, a sum
12sufficient to pay for legal expenses under s. 59.32 (3), for costs under ss. 227.485 and
13814.245 and for the cost of judgments, orders and settlements of actions, appeals and
14complaints under subch. II of ch. 111 or subch. II or III of ch. 230, and those
15judgments, awards, orders and settlements under ss.
21.13, 165.25 (6),
321.42, 16775.04 and 895.46 that are not otherwise reimbursable as liability costs under par.
17(fm). Release of moneys under this paragraph pursuant to any settlement
18agreement, whether or not incorporated into an order, is subject to approval of the
19attorney general.
AB400, s. 14
20Section
14. 20.865 (1) (q) of the statutes is amended to read:
AB400,17,421
20.865
(1) (q)
Judgments and legal expenses; segregated revenues. From the
22appropriate segregated funds, a sum sufficient to pay for legal expenses under s.
2359.32 (3), for costs under ss. 227.485 and 814.245 and for the cost of judgments,
24orders and settlements of actions, appeals and complaints under subch. II of ch. 111
25or subch. II or III of ch. 230, and those judgments, awards, orders and settlements
1under ss.
21.13, 165.25 (6),
321.42, 775.04 and 895.46 that are not otherwise
2reimbursable as liability costs under par. (fm). Release of moneys under this
3paragraph pursuant to any settlement agreement, whether or not incorporated into
4an order, is subject to approval of the attorney general.
AB400, s. 15
5Section
15. Chapter 21 (title) of the statutes is repealed.
AB400, s. 16
6Section
16. 21.01 of the statutes is renumbered 321.30 and amended to read:
AB400,17,10
7321.30 Composition of national guard.
(1) The organized militia of this
8state shall be known as the "Wisconsin national guard" and shall consist of members
9appointed commissioned or enlisted
therein in accordance with federal law or
10regulations governing
or pertaining to the national guard.
AB400,17,14
11(2) The Wisconsin national guard shall
be organized into consist of the army
12national guard and
the air national guard
units, and "national guard" when used in
13this chapter, unless the context otherwise requires, means both the Wisconsin army
14national guard and the Wisconsin air national guard.
AB400, s. 17
15Section
17. 21.015 (title) of the statutes is renumbered 321.03 (title) and
16amended to read:
AB400,17,17
17321.03 (title)
Department
Powers and duties of the department.
AB400, s. 18
18Section
18. 21.015 (intro.) of the statutes is renumbered 321.03 (1) (intro.) and
19amended to read:
AB400,17,2120
321.03
(1) (intro.) The department
of military affairs shall
do all of the
21following:
AB400, s. 19
22Section
19. 21.015 (1) of the statutes is renumbered 321.03 (1) (a).
AB400, s. 20
23Section
20. 21.015 (2) of the statutes is renumbered 321.03 (1) (b) and
24amended to read:
AB400,18,2
1321.03
(1) (b) Provide facilities
and support for the national guard
and any
2other support available from the appropriations under s. 20.465.
AB400, s. 21
3Section
21. 21.025 (title) of the statutes is renumbered 321.51 (title).
AB400, s. 22
4Section
22. 21.025 (1), (2) (a), (c) and (d), (3), (4), (6), (8), (9), (10) and (11n) of
5the statutes are renumbered 321.51 (1), (2) (a), (c) and (d), (3), (4), (5), (6), (7), (8) and
6(10) and amended to read:
AB400,18,187
321.51
(1) Authority and name. The adjutant general may establish a plan for
8organizing a military force to be known as the
Wisconsin state defense force. "state
9defense force." The
governor, or adjutant general
if designated by the governor, may
10organize the
Wisconsin state defense force
under the plan, which may include an
11aviation unit, if all or part of the national guard is called into
the service of the United
12States. It federal active duty. The state defense force shall be
a uniformed force 13distinct from the national guard,
uniformed, and composed of
officers, commissioned
14or assigned
, officers and
of enlisted personnel who volunteer for service.
15Membership in the Wisconsin state defense force may not include any A person who
16is
on active duty in the
active military U.S. armed forces, including the
active reserve
17components
, may not serve in the state defense force.
Persons A person in the retired
18or inactive reserve may serve in the
Wisconsin state defense force.
AB400,19,6
19(2) (a) The governor
or adjutant general, if designated by the governor, may
20prescribe
rules and regulations
not inconsistent, instructions, and policies
21consistent with this section governing the enlistment, organization, administration,
22equipment,
uniforms, maintenance, training, and discipline of
such forces, except
23that such rules and regulations, insofar as the state defense force. The regulations,
24instructions, and policies, to the extent the governor
deems practicable and desirable 25considers necessary, shall conform to existing law governing
and pertaining to the
1national guard
and the rules and regulations promulgated thereunder and. The
2regulations, instructions, and policies shall prohibit
the acceptance of a member of
3the state defense force from accepting any gifts, donations, gratuities, or
anything 4other things of value
by such forces or by any member of such forces from any person
5by reason of such membership given to the member because he or she is a member
6of the state defense force other than wages and benefits paid by the state.
AB400,19,97
(c) Officers and enlistees, while on
state active duty
under orders of the
8governor,
in the state defense force shall receive the base pay and allowances of the
9identical grade in the
United States U.S. army.
AB400,19,1510
(d) The adjutant general may organize a
cadre force
recruitment and training
11unit of not more than 12
personnel persons at each
state-owned state armory.
Each
12cadre force shall The unit shall establish recruitment lists of persons interested in
13becoming members of the state defense force,
which may be used to recruit full units
14for the state defense force
in case the national guard is mobilized for active federal
15duty, and train the persons recruited.
AB400,20,7
16(3) Requisitions; armories; other buildings. For the use of such forces, the The 17governor
or adjutant general, if designated by the governor, may requisition
military
18property from the federal government
such arms and equipment as may be available,
19and the for the use of the state defense force. The governor
or adjutant general, if
20designated by the governor, may make available to the state defense force the
21facilities of state armories and
their equipment and such military property and other
22state premises and property
as may be available and may, through the. The 23department
of military affairs, may rent or lease buildings or parts of buildings and
24grounds for armory purposes or continue in possession of
such those premises leased
25by the department
of military affairs for the use of the national guard, paying
rental
1therefor out of funds appropriated rent from the appropriation under s. 20.465 (1) (a).
2All leases
so made shall made under this subsection terminate upon dissolution of
3the
Wisconsin state defense force regardless of the term provided
therein in the lease, 4unless the premises
shall be are needed for national guard purposes
, in which case
5the. The lease
for the premises needed for the national guard may be assigned by
6the department
of military affairs to the national guard organization
intending that
7intends to occupy the premises.
AB400,20,10
8(4) Use without outside this state. Such forces shall The state defense force
9may not
be required to serve outside the boundaries of this state
except unless one
10of the following applies:
AB400,20,1611
(a) Upon the request of the governor of another state, the governor of this state
12may order any portion or orders all
or part of
such forces the state defense force to
13assist
the a military
unit or
police forces of such law enforcement agency of the other
14state
who are actually engaged in defending such other state. Such forces may be
15recalled by the. The governor
at the governor's discretion may recall the state
16defense force from the other state at any time.
AB400,21,817
(b)
Any organization, unit, or detachment of such forces, upon Upon order of
18the officer in
immediate command
thereof, may continue, the state defense force
19continues in fresh pursuit of insurrectionists,
saboteurs, enemies terrorists, or
20enemy forces
beyond the borders of this state into another state until they are
21apprehended or captured
by such organization, unit, or detachment or until
the a 22military
unit or
police forces law enforcement agency of the other state or the forces
23of the United States have had a reasonable opportunity to take up the pursuit or to
24apprehend or capture
such those persons
, provided such. Any pursuit under this
25subsection may only take place if the other state
shall have given gives authority
by
1law for
such the pursuit
by such forces of this state. Any
such person who
shall be
2apprehended or is captured in
such the other state by
an organization, unit, or
3detachment of the forces of this the state
defense force shall without unnecessary
4delay be surrendered to
the a military
unit or
police forces law enforcement agency 5of the state in which the person is
taken captured or to the United States
, but such.
6The surrender
of the person captured shall not constitute a waiver by this state of
7its the right to extradite or prosecute
such the person for any crime committed in this
8state.
AB400,21,14
9(5) Federal service active duty. Nothing in this section shall be construed as
10authorizing such forces, or any part thereof to be called, ordered, or in any manner 11No unit of the state defense force may be drafted, as such
, into the
U.S. military
12service of the United States, but no. No person shall by reason of
enlistment or
13commission in any such forces membership in the state defense force be exempted
14from
military service under any law of the United States federal active duty.
AB400,21,18
15(6) Disqualifications. No person
shall be commissioned or enlisted in such
16forces who is not a citizen of the United States or who has been expelled or
17dishonorably discharged from any military or naval organization
, of this state,
or of
18another state, or of the United States
may be a member of the state defense force.
AB400,21,22
19(7) Oath of officers. The oath to be taken by officers
commissioned
or enlistees 20in
such forces the state defense force shall be substantially in the form prescribed for
21officers of the national guard.
The oath shall be filed in the same manner as in the
22national guard.
AB400,22,2
23(8) Enlistees. No person
shall may be enlisted
in the state defense force for
24more than one year, but
such enlistment may be renewed.
The oath to be taken upon
1enlistment in such forces shall be substantially in the form prescribed for enlistees
2of the national guard.
AB400,22,4
3(10) Labor disputes. The state defense force
shall may not be used to interfere
4with the orderly process of a labor dispute.
AB400, s. 23
5Section
23. 21.025 (2) (title) of the statutes is renumbered 321.51 (2) (title).
AB400, s. 24
6Section
24. 21.025 (2) (b) of the statutes is repealed.
AB400, s. 25
7Section
25. 21.025 (5) (title) of the statutes is renumbered 321.05 (title).
AB400, s. 26
8Section
26. 21.025 (5) (a) and (b) of the statutes are renumbered 321.05 (1) and
9(2) and amended to read:
AB400,22,1710
321.05
(1) Any military
forces or organization, unit
, or detachment thereof, of
11another state
who are that is in fresh pursuit of insurrectionists,
saboteurs, enemies 12terrorists, or enemy forces may continue
such the pursuit into this state until
the a 13military
unit or
police forces law enforcement agency of this state or the
forces of the
14United States have U.S. military has had a reasonable opportunity to take up the
15pursuit or
to apprehend or capture
such persons, and such the persons. The military
16forces of such unit of the other state may arrest or capture
such those persons
within 17in this state while in fresh pursuit.
AB400,22,21
18(2) Any
such person who
shall be is captured or arrested by the military
forces
19of such other unit of another state while in this state shall without unnecessary delay
20be surrendered to
the a military
unit or
police forces law enforcement agency of this
21state
to be dealt with according to law.
AB400, s. 27
22Section
27. 21.025 (5) (c) of the statutes is repealed.
AB400, s. 28
23Section
28. 21.025 (7) of the statutes is repealed.
AB400, s. 29
24Section
29. 21.025 (11m) (title) of the statutes is renumbered 321.51 (9) (title).
AB400, s. 30
1Section
30. 21.025 (11m) (a) and (b) of the statutes are consolidated,
2renumbered 321.51 (9) and amended to read:
AB400,23,143
321.51
(9) Officers and enlistees of the
"Wisconsin State Defense Force" state
4defense force who have served honorably
therein for a period of at least one year and
5are active members of their respective units at the time of its demobilization shall 6may, upon application to the unit commander, be permitted to retain
the items of
7their uniform
prescribed by the governor by rule. (b) The. If retained, the uniform
8prescribed under par. (a) may be worn only on occasions
of ceremony. "Occasions of
9ceremony" means occasions essentially of a military character at which the uniform
10is more appropriate than civilian clothing, such as memorial services, military
11weddings, military funerals, military balls, military parades,
military reunions, and
12meetings or functions of associations formed for military purposes, the membership
13of which is composed largely or entirely of honorably discharged
veterans of the
14services members of the U.S. military, national guard, and state defense force.
AB400, s. 31
15Section
31. 21.025 (13) of the statutes is repealed.
AB400, s. 32
16Section
32. 21.03 of the statutes is renumbered 321.20 and amended to read:
AB400,23,21
17321.20 Distribution of arms military property. The governor may receive
18and distribute
, according to law, the quota of arms and military
equipment which 19property that the state
may receive
receives from the
U.S. government
of the United
20States under
the provisions of any acts of congress federal laws providing for arming
21and equipping
of the national guard and the state defense force.
AB400, s. 33
22Section
33. 21.04 of the statutes is renumbered 321.22 and amended to read:
