LRB-1518/1
RPN:jld:rs
2007 - 2008 LEGISLATURE
March 8, 2007 - Introduced by Senators Grothman, Darling, Lazich, Roessler and
Schultz, cosponsored by Representatives Gundrum, Albers, Ballweg,
Gunderson, Hahn, Kestell, LeMahieu, Montgomery, Mursau, Musser, Nass,
Nerison, Owens, Petrowski, Pridemore, Strachota, Van Roy, Vos and
Zipperer. Referred to Committee on Judiciary and Corrections.
SB85,1,3
1An Act to amend 230.85 (3) (b), 802.10 (7), 809.103 (2) (a), 814.04 (intro.) and
2814.29 (3) (a); and
to create 895.044 of the statutes;
relating to: damages for
3frivolous claims.
Analysis by the Legislative Reference Bureau
Under current law, every document submitted to the court must be signed by
a party or, if the party has an attorney, by the attorney. By signing the document,
current law provides that the person is certifying that the document is not presented
for any improper purpose, such as to harass or cause unnecessary delay, that the
claims made in the document are warranted by existing law or a nonfrivolous
extension, modification, or reversal of the law, that the facts presented in the
document are likely to have evidentiary support, and that any factual denials in the
document are warranted by evidence or, if so identified, reasonably based on a lack
of information or belief. Currently, if the court determines that any of these
conditions are not met, the court may impose an appropriate sanction on the
responsible attorney or party. Under current law, the sanction is what is sufficient
to deter repetition of the conduct, and may include payment of the reasonable
attorney fees or other expenses resulting from the improper conduct. Monetary
sanctions cannot be awarded against a represented party for making a claim that is
not based on existing law or a nonfrivolous extension or modification of law, and
before any monetary sanctions may be awarded by the court, the court must issue
an order to show cause regarding the dismissal or settlement of the claim.
Under this bill, in civil actions, a party or his or her attorney is subject to
damages for costs and fees for beginning, using, or continuing an action if that is done
solely for the purpose of harassing or maliciously injuring another and the party or
attorney knew that there was no reasonable basis in law for the conduct or no good
faith argument for an extension, modification, or reversal of the law. The bill allows
a party to an action to ask the court by motion to determine if another party has
violated these provisions, and if, by clear and convincing evidence, the court so finds,
the court may do one of the following:
1. If the offending party withdraws or corrects the improper conduct within 21
days or a time set by the court, award the moving party the actual costs incurred as
a result of the conduct, including reasonable attorney fees, taking into consideration
the offending party's mitigating conduct.
2. If the offending party does not timely withdraw or correct the improper
conduct, award the moving party the actual costs incurred as a result of the conduct,
including reasonable attorney fees.
Under the bill, if an award of costs for violating these provisions is affirmed on
appeal, the appellate court is required to send the action to the lower court to award
the damages necessary to compensate the successful party for the actual reasonable
attorney fees incurred in the appeal. In addition, if the appellate court finds that a
party has committed a violation of one of these provisions in an appeal, the appellate
court must, after completion of the appeal, send the action back to the lower court
to award the damages necessary to compensate the offended party for the actual
reasonable attorney fees incurred in the appeal.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB85, s. 1
1Section
1. 230.85 (3) (b) of the statutes is amended to read:
SB85,3,22
230.85
(3) (b) If, after hearing, the division of equal rights finds that the
3respondent did not engage in or threaten a retaliatory action it shall order the
4complaint dismissed. The division of equal rights shall order the employee's
5appointing authority to insert a copy of the findings and orders into the employee's
6personnel file and, if the respondent is a natural person, order the respondent's
7appointing authority to insert such a copy into the respondent's personnel file. If the
8division of equal rights finds by unanimous vote that the employee filed a frivolous
9complaint it may order payment of the respondent's reasonable actual attorney fees
10and actual costs. Payment may be assessed against either the employee or the
11employee's attorney, or assessed so that the employee and the employee's attorney
1each pay a portion. To find a complaint frivolous the division of equal rights must
2find that s. 802.05 (2)
or 895.044 has been violated.
SB85, s. 2
3Section
2. 802.10 (7) of the statutes is amended to read:
SB85,3,54
802.10
(7) Sanctions. Violations of a scheduling or pretrial order are subject
5to ss. 802.05, 804.12
and, 805.03
, and 895.044.
SB85, s. 3
6Section
3. 809.103 (2) (a) of the statutes is amended to read:
SB85,3,77
809.103
(2) (a) Is frivolous, as determined under s. 802.05 (2)
or 895.044.
SB85, s. 4
8Section
4. 814.04 (intro.) of the statutes is amended to read:
SB85,3,13
9814.04 Items of costs. (intro.) Except as provided in ss. 93.20, 100.195 (5m)
10(b), 100.30 (5m), 106.50 (6) (i) and (6m) (a), 115.80 (9), 281.36 (2) (b) 1., 767.553 (4)
11(d), 769.313,
814.025, 802.05,
814.245, 895.035 (4),
895.044, 895.506, 895.443 (3),
12895.444 (2), 895.445 (3), 895.446 (3), 943.212 (2) (b), 943.245 (2) (d), 943.51 (2) (b),
13and 995.10 (3), when allowed costs shall be as follows:
SB85, s. 5
14Section
5. 814.29 (3) (a) of the statutes is amended to read:
SB85,3,2115
814.29
(3) (a) A request for leave to commence or defend an action, proceeding,
16writ of error or appeal without being required to pay fees or costs or to give security
17for costs constitutes consent of the affiant and counsel for the affiant that if the
18judgment is in favor of the affiant the court may order the opposing party to first pay
19the amount of unpaid fees and costs, including attorney fees under ss. 802.05
and,
20804.12 (1) (c)
, and 895.044 and under
42 USC 1988 and to pay the balance to the
21plaintiff.
SB85, s. 6
22Section
6. 895.044 of the statutes is created to read:
SB85,4,2
23895.044 Damages for maintaining certain claims and counterclaims.
24(1) A party or a party's attorney is subject to damages for costs and fees under this
25section for commencing, using, or continuing an action, special proceeding,
1counterclaim, defense, cross complaint, or appeal to which any of the following
2applies:
SB85,4,53
(a) The action, special proceeding, counterclaim, defense, cross complaint, or
4appeal was commenced, used, or continued in bad faith, solely for purposes of
5harassing or maliciously injuring another.
SB85,4,96
(b) The party or the party's attorney knew, or should have known, that the
7action, special proceeding, counterclaim, defense, cross complaint, or appeal was
8without any reasonable basis in law or equity and could not be supported by a good
9faith argument for an extension, modification, or reversal of existing law.
SB85,4,14
10(2) Upon either party's motion made at any time during the proceeding or upon
11judgment, if a court finds, upon clear and convincing evidence, that sub. (1) (a) or (b)
12applies to an action or special proceeding commenced or continued by a plaintiff or
13a counterclaim, defense, or cross complaint commenced, used, or continued by a
14defendant, the court:
SB85,4,2415
(a) May, if the party served with the motion withdraws, or appropriately
16corrects, the action, special proceeding, counterclaim, defense, or cross complaint
17within 21 days after service of the motion, or within such other period as the court
18may prescribe, award to the party making the motion, as damages, the actual costs
19incurred by the party as a result of the action, special proceeding, counterclaim,
20defense, or cross complaint, including the actual reasonable attorney fees the party
21incurred, including fees incurred in any dispute over the application of this section.
22In determining whether to award, and the appropriate amount of, damages under
23this paragraph, the court shall take into consideration the timely withdrawal or
24correction made by the party served with the motion.
SB85,5,5
1(b) Shall, if a withdrawal or correction under par. (a) is not timely made, award
2to the party making the motion, as damages, the actual costs incurred by the party
3as a result of the action, special proceeding, counterclaim, defense, or cross
4complaint, including the actual reasonable attorney fees the party incurred,
5including fees incurred in any dispute over the application of this section.
SB85,5,9
6(2m) If a party makes a motion under sub. (2), a copy of that motion and a notice
7of the date of the hearing on that motion shall be served on any party who is not
8represented by counsel only by personal service or by sending the motion to the party
9by registered mail.
SB85,5,13
10(3) If an award under this section is affirmed upon appeal, the appellate court
11shall, upon completion of the appeal, remand the action to the trial court to award
12damages to compensate the successful party for the actual reasonable attorney fees
13the party incurred in the appeal.
SB85,5,19
14(4) If the appellate court finds that sub. (1) (a) or (b) applies to an appeal, the
15appellate court shall, upon completion of the appeal, remand the action to the trial
16court to award damages to compensate the successful party for all the actual
17reasonable attorney fees the party incurred in the appeal. An appeal is subject to this
18subsection in its entirety if any element necessary to succeed on the appeal is
19supported solely by an argument that is described under sub. (1) (a) or (b).
SB85,5,24
20(5) The costs and fees awarded under subs. (2) to (4) may be assessed fully
21against the party bringing the action, special proceeding, cross complaint, defense,
22counterclaim, or appeal or the attorney representing the party, or both, jointly and
23severally, or may be assessed so that the party and the attorney each pay a portion
24of the costs and fees.
SB85,6,3
1(6) This section does not apply to criminal actions or civil forfeiture actions.
2Subsection (4) does not apply to appeals under s. 809.107, 809.30, or 974.05 or to
3appeals of civil forfeiture actions.
SB85,6,65
(1) This act first applies to actions or special proceedings that are commenced
6or continued after the effective date of this subsection.
SB85,6,98
(1)
This act takes effect on the first day of the 4th month beginning after
9publication.
