LRB-0155/3
PJH:klm
2015 - 2016 LEGISLATURE
October 29, 2015 - Introduced by Senators Risser,
Wanggaard, Miller, Olsen, L.
Taylor, Ringhand, Cowles, Lassa, Carpenter and Wirch, cosponsored by
Representatives Jacque, Kahl, Ballweg, Subeck, Jorgensen, A. Ott, Sinicki,
Billings, Johnson and Spreitzer. Referred to Committee on Judiciary and
Public Safety.
SB351,1,11
1An Act to repeal 806.247 (title) and 813.128 (1) (title);
to renumber 806.247 (1)
2(intro.), 806.247 (1) (a), 806.247 (2) (title), 806.247 (3) (b) and 813.128 (1) (b);
to
3renumber and amend 806.247 (1) (b), 806.247 (2) (a), 806.247 (2) (b), 806.247
4(3) (title), 806.247 (3) (a), 806.247 (3) (c), 813.128 (1) (a), 813.128 (2) and 813.128
5(3);
to amend 175.35 (1) (at), 175.60 (9g) (a) 2., 806.245 (6), 813.12 (6) (am) 1.,
6813.128 (title), 940.20 (1m) (a), 941.29 (1) (f), 968.07 (1m), 968.075 (2) (am),
7973.075 (1) (b) 1m. f. and 973.075 (1) (bm); and
to create 813.128 (1g) (b),
8813.128 (1g) (c), 813.128 (1g) (d), 813.128 (1g) (f), 813.128 (1g) (g), 813.128 (2g)
9(a) 3., 813.128 (2g) (a) 4., 813.128 (3g) (b) 3., 813.128 (3g) (c) to (i), 813.128 (6)
10and 813.128 (7) of the statutes;
relating to: the Uniform Interstate
11Enforcement of Domestic Violence Protection Orders Act.
Analysis by the Legislative Reference Bureau
This bill incorporates into Wisconsin law the 2002 Uniform Interstate
Enforcement of Domestic Violence Protection Orders Act.
Current law gives domestic violence protection orders issued by another state
or an Indian tribe full faith and credit in this state, allowing those orders to be
enforced in courts in this state if they meet certain procedural requirements,
including ensuring that the court had jurisdiction over the persons involved and the
subject matter, and that the person subject to the order was provided with his or her
right to due process. Current law establishes a method of filing a foreign protection
order with a circuit court and requires the circuit court to send a copy of that order
to the county sheriff or local law enforcement agency.
Additional current law gives law enforcement officers the authority to arrest a
person subject to a protection order if the law enforcement officer has probable cause
to believe the person has violated a valid foreign protection order. Under current law,
court officials, prosecutors, and law enforcement officers are immune from any
liability for his or her acts or omissions related to the filing of a foreign protection
order or the detention or arrest of an alleged violator of a foreign protection order.
This bill consolidates those separate units of current law and creates additional
statutory language to enact the 2002 Uniform Interstate Enforcement of Domestic
Violence Protection Orders Act, as adopted by the National Conference of
Commissioners on Uniform State Laws.
The Act defines "protection order" to be an injunction or other order, issued by
a tribunal under the domestic violence, family violence, or antistalking laws of the
issuing state, to prevent an individual from engaging in violent or threatening acts
against, harassment of, contact or communication with, or physical proximity to
another individual. The fact that the order has terms and conditions that are
different from orders issued in the enforcing state, or come from tribunals that are
not organized in the same fashion as the tribunals of the enforcing state, does not
mean that the enforcing state may refuse enforcement. Any kind of a foreign order
that is intended to prevent violence must be enforced. The term "tribunal," as used
in the Act, is consistent with the usage of the Uniform Interstate Family Support Act,
which has been enacted in every U.S. jurisdiction. Whether the enforcing body is a
court or an agency, the term tribunal includes both within its scope.
A tribunal with jurisdiction to enforce orders may enforce a foreign protection
order without any other prior perfecting or validating procedure. A valid foreign
protection order must be enforced. A valid protection order is one that identifies the
protected individual (the potential victim) and the respondent (the potential
victimizer), is currently in effect, and was issued by a tribunal with full jurisdiction.
An order valid on its face establishes a prima facie case for its validity. The presence
of an order that identifies the protected individual and the respondent that is current
constitutes probable cause to believe that a valid foreign protection order exists. Law
enforcement officers who are not presented with an actual order may still act to
enforce upon other information that provides probable cause to believe that a valid
order exists.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB351,1
1Section
1. 175.35 (1) (at) of the statutes is amended to read:
SB351,3,16
1175.35
(1) (at) "Firearms restrictions record search" means a search of
2department of justice records to determine whether a person seeking to purchase a
3handgun is prohibited from possessing a firearm under s. 941.29. "Firearms
4restrictions record search" includes a criminal history record search, a search to
5determine whether a person is prohibited from possessing a firearm under s. 51.20
6(13) (cv) 1., 2007 stats., a search in the national instant criminal background check
7system to determine whether a person has been ordered not to possess a firearm
8under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1., 54.10 (3) (f) 1., or 55.12 (10) (a), a search
9to determine whether the person is subject to an injunction under s. 813.12 or
10813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued by a court
11established by any federally recognized Wisconsin Indian tribe or band, except the
12Menominee Indian tribe of Wisconsin, that includes notice to the respondent that he
13or she is subject to the requirements and penalties under s. 941.29 and that has been
14filed with the circuit court under s.
806.247 (3)
813.128 (3g), and a search to
15determine whether the person is prohibited from possessing a firearm under s.
16813.123 (5m) or 813.125 (4m).
SB351,2
17Section
2. 175.60 (9g) (a) 2. of the statutes is amended to read:
SB351,4,1018
175.60
(9g) (a) 2. The department shall conduct a criminal history record
19search and shall search its records and conduct a search in the national instant
20criminal background check system to determine whether the applicant is prohibited
21from possessing a firearm under federal law; whether the applicant is prohibited
22from possessing a firearm under s. 941.29; whether the applicant is prohibited from
23possessing a firearm under s. 51.20 (13) (cv) 1., 2007 stats.; whether the applicant
24has been ordered not to possess a firearm under s. 51.20 (13) (cv) 1., 51.45 (13) (i) 1.,
2554.10 (3) (f) 1., or 55.12 (10) (a); whether the applicant is subject to an injunction
1under s. 813.12 or 813.122, or a tribal injunction, as defined in s. 813.12 (1) (e), issued
2by a court established by any federally recognized Wisconsin Indian tribe or band,
3except the Menominee Indian tribe of Wisconsin, that includes notice to the
4respondent that he or she is subject to the requirements and penalties under s.
5941.29 and that has been filed with the circuit court under s.
806.247 (3) 813.128 (3g);
6and whether the applicant is prohibited from possessing a firearm under s. 813.123
7(5m) or 813.125 (4m); and to determine if the court has prohibited the applicant from
8possessing a dangerous weapon under s. 969.02 (3) (c) or 969.03 (1) (c) and if the
9applicant is prohibited from possessing a dangerous weapon as a condition of release
10under s. 969.01.
SB351,3
11Section
3. 806.245 (6) of the statutes is amended to read:
SB351,4,1412
806.245
(6) A foreign protection order, as defined in s.
806.247 (1) (b) 813.128
13(1g) (c), issued by an Indian tribal court in this state shall be accorded full faith and
14credit under s.
806.247 813.128.
SB351,4
15Section
4. 806.247 (title) of the statutes is repealed.
SB351,5
16Section
5. 806.247 (1) (intro.) of the statutes is renumbered 813.128 (1g)
17(intro).
SB351,6
18Section
6. 806.247 (1) (a) of the statutes is renumbered 813.128 (1g) (a).
SB351,7
19Section
7. 806.247 (1) (b) of the statutes is renumbered 813.128 (1g) (e) and
20amended to read:
SB351,5,221
813.128
(1g) (e) "
Foreign protection Protection order" means any temporary or
22permanent injunction or order
of a civil or criminal court of the United States, of an
23Indian tribe or of any other state issued
for preventing by a tribunal to prevent an
24individual from engaging in abuse, bodily harm, communication, contact,
25harassment, physical proximity, threatening acts or violence
by or to
a another
1person, other than support or custody orders.
This term includes an injunction or
2order issued under the antistalking laws of the issuing state.
SB351,8
3Section
8. 806.247 (2) (title) of the statutes is renumbered 813.128 (2g) (title).
SB351,9
4Section
9. 806.247 (2) (a) of the statutes is renumbered 813.128 (2g) (a) and
5amended to read:
SB351,5,96
813.128
(2g) (a) A foreign protection order shall be accorded full faith and
7credit by the
courts tribunals in this state and shall be enforced as if the order were
8an order of a
court tribunal of this state if the order meets all of the following
9conditions:
SB351,5,1610
1. The foreign protection order was obtained after providing the
person against
11whom the protection order was sought respondent a reasonable notice and
12opportunity to be heard sufficient to protect his or her right to due process. If the
13foreign protection order is an ex parte injunction or order, the
person against whom
14the order was obtained respondent shall have been given notice and an opportunity
15to be heard within a reasonable time after the order was issued sufficient to protect
16his or her right to due process.
SB351,5,1817
2. The
court tribunal that issued the order had jurisdiction over the parties and
18over the subject matter.
SB351,10
19Section
10. 806.247 (2) (b) of the statutes is renumbered 813.128 (2g) (c) and
20amended to read:
SB351,5,2321
813.128
(2g) (c) A foreign protection order issued against the person who filed
22a written pleading with a
court tribunal for a protection order is not entitled to full
23faith and credit under this subsection if any of the following occurred:
SB351,5,2524
1. No written pleading was filed seeking the foreign protection order against
25that the person
who filed a written pleading with a tribunal for a protection order.
SB351,6,2
12. A cross or counter petition was filed but the
court tribunal did not make a
2specific finding that each party was entitled to a foreign protection order.
SB351,11
3Section
11. 806.247 (3) (title) of the statutes is renumbered 813.128 (3g) (title)
4and amended to read:
SB351,6,55
813.128
(3g) (title)
Filing and enforcement of a foreign protection order.
SB351,12
6Section
12. 806.247 (3) (a) of the statutes is renumbered 813.128 (3g) (a) 1. and
7amended to read:
SB351,6,148
813.128
(3g) (a) 1. A copy of any foreign protection order, or of a modification
9of a foreign protection order that is on file with the circuit court, that is authenticated
10in accordance with an act of congress, an Indian tribal legislative body or the statutes
11of another state may be filed in the office of the clerk of circuit court of any county
12of this state.
The clerk may not charge a fee for the filing of a foreign protection order. 13The clerk shall treat any foreign protection order or modification so filed in the same
14manner as a judgment of the circuit court.
SB351,13
15Section
13. 806.247 (3) (b) of the statutes is renumbered 813.128 (3g) (a) 2.
SB351,14
16Section
14. 806.247 (3) (c) of the statutes is renumbered 813.128 (3g) (a) 3. and
17amended to read:
SB351,7,218
813.128
(3g) (a) 3. The sheriff or law enforcement agency that receives a copy
19of a foreign protection order or of a modification of an order from the clerk under
par.
20(b) subd. 2. shall enter the information received concerning the order or modification
21of an order into the transaction information for management of enforcement system
22no later than 24 hours after receiving the information. The sheriff or law
23enforcement agency shall make available to other law enforcement agencies,
24through a verification system, information on the existence and status of any order
1or modification of an order filed under this subsection. The information need not be
2maintained after the order or modification is no longer in effect.
SB351,15
3Section
15. 813.12 (6) (am) 1. of the statutes is amended to read:
SB351,7,114
813.12
(6) (am) 1. If an injunction is issued or extended under sub. (4) or if a
5tribal injunction is filed under s.
806.247 (3) 813.128 (3g), the clerk of the circuit court
6shall notify the department of justice of the injunction and shall provide the
7department of justice with information concerning the period during which the
8injunction is in effect and information necessary to identify the respondent for
9purposes of responding to a request under s. 165.63 or for purposes of a firearms
10restrictions record search under s. 175.35 (2g) (c) or a background check under s.
11175.60 (9g) (a).
SB351,16
12Section
16. 813.128 (title) of the statutes is amended to read:
SB351,7,14
13813.128 (title)
Foreign Uniform interstate enforcement of domestic
14violence protection orders act.
SB351,17
15Section
17. 813.128 (1) (title) of the statutes is repealed.
SB351,18
16Section
18. 813.128 (1) (a) of the statutes is renumbered 813.128 (2g) (b) and
17amended to read:
SB351,7,2218
813.128
(2g) (b) A foreign protection order or modification of the foreign
19protection order that meets the requirements under
s. 806.247 (2) this section has
20the same effect as an order issued under s. 813.12, 813.122, 813.123 or 813.125,
21except that the foreign protection order or modification shall be enforced according
22to its own terms.
SB351,19
23Section
19. 813.128 (1) (b) of the statutes is renumbered 813.128 (3g) (b).
