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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 698
November 27, 2023 - Introduced by Representatives CLANCY, J. ANDERSON,
MADISON, PALMERI, BALDEH, BARE, CABRERA, DRAKE, EMERSON, SHELTON,
SINICKI, SNODGRASS, STUBBS, HONG, CONLEY, JOERS, JACOBSON and MOORE
OMOKUNDE, cosponsored by Senators LARSON, L. JOHNSON and HESSELBEIN.
Referred to Committee on Housing and Real Estate.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to renumber and amend 799.20 (4); to amend 704.17 (4), 799.09,
799.12 (6) (c) (intro.), 799.14 (2), 799.16 (3) (b), 799.16 (4) (c) (title), 799.20 (title),
799.20 (1), 799.206 (3), 799.207 (1) (a), 799.207 (1) (b), 799.21 (2), 799.22 (2),
799.41 (1), 977.02 (2m), 977.05 (4) (gm), 977.08 (1) and 977.08 (2) (intro.); and
to create 20.550 (1) (b), 704.145, 799.05 (8), 799.16 (4) (d), 799.20 (3), 799.20
(4) (a), 799.22 (4) (b) 4., 799.40 (4) (c), 799.425, 977.05 (4) (i) 10. and 977.08 (2)
(i) of the statutes; relating to: a residential tenant's right to counsel in an
eviction action and making an appropriation.
Analysis by the Legislative Reference Bureau
This bill generally provides that a residential tenant has the right to counsel
at public expense in an eviction action.
The bill provides that, in a residential eviction action, a statutory notice must
be attached to the summons informing the tenant that the tenant has the right to
have counsel provided at public expense, and, if service is made by publication, the
statutory notice also must by published. If a tenant contacts the clerk of court to
request the appointment of counsel, files an answer without the assistance of
counsel, or appears in court without counsel on the return date of the summons, the
bill requires the court or circuit court commissioner to inquire of the tenant whether
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the tenant waives counsel, and, if the tenant does not waive counsel, the court or
commissioner must appoint counsel and stay the proceedings. Under the bill, such
a stay generally remains in effect until counsel is appointed for the tenant, and the
tenant is entitled to continued possession or occupancy of the premises while the stay
remains in effect. If a tenant is entitled to counsel under the bill, the court may
appoint counsel for the tenant or refer the tenant to the State Public Defender, which
must appoint counsel without a determination of indigency.
The bill also requires that residential rental agreements include a notice of the
tenant's right to counsel in eviction cases, and requires that landlords providing
notice of residential tenant eviction must include in such notice information about
how the tenant has the right to counsel in an eviction action. The required language
of these notices is included in the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 20.550 (1) (b) of the statutes is created to read:
20.550 (1) (b) Counsel for termination of residential tenancy. A sum sufficient
for the cost of providing legal services under s. 977.05 (4) (i) 10.
SECTION 2. 704.145 of the statutes is created to read:
704.145 Notices of right to counsel in eviction actions. (1) A residential
rental agreement shall include the following notice in the agreement or in an
addendum to the agreement:
NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
tenant whose residential tenancy has been terminated for any reason, the tenant has
a right to counsel at public expense and, once referred to the state public defender,
the state public defender shall appoint counsel for the tenant under s. 977.08 of the
Wisconsin Statutes without a determination of indigency, unless the tenant
knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
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appointed in an eviction action must appear on the date specified in the summons
or request that counsel be appointed by contacting the clerk of court of the county in
which the residential eviction action has been brought on or before the return date
specified in the summons. A tenant is advised that this notice is only a summary of
the tenant's rights and the specific language of the statutes governs in all instances.
(2) A landlord providing notice under ss. 704.16, 704.17, and 704.19 shall
include in the notice the following information:
RIGHT TO COUNSEL IN EVICTION ACTIONS
As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
tenant whose residential tenancy has been terminated for any reason, the tenant has
a right to counsel at public expense and, once referred to the state public defender,
the state public defender shall appoint counsel for the tenant under s. 977.08 of the
Wisconsin Statutes without a determination of indigency, unless the tenant
knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
appointed in an eviction action must appear on the date specified in the summons
or request that counsel be appointed by contacting the clerk of court of the county in
which the residential eviction action has been brought on or before the return date
specified in the summons. A tenant is advised that this notice is only a summary of
the tenant's rights and the specific language of the statutes governs in all instances.
SECTION 3. 704.17 (4) of the statutes is amended to read:
704.17 (4) FORM OF NOTICE AND MANNER OF GIVING. Notice must be in writing and
given as specified in s. 704.21. If so given, and unless ordered otherwise by a court
in an eviction action under ch. 799, the tenant is not entitled to possession or
occupancy of the premises after the date of termination specified in the notice.
SECTION 4. 799.05 (8) of the statutes is created to read:
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SECTION 4 ASSEMBLY BILL 698
799.05 (8) NOTICE OF RIGHT TO COUNSEL IN RESIDENTIAL EVICTION ACTIONS. In a
residential eviction action, a notice shall be attached to the summons informing the
tenant that the tenant has the right to have counsel provided at public expense, as
provided under s. 799.425. The notice shall be substantially in the following form:
NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
tenant whose residential tenancy has been terminated for any reason, the tenant has
a right to counsel at public expense and, once referred to the state public defender,
the state public defender shall appoint counsel for the tenant under s. 977.08 of the
Wisconsin Statutes without a determination of indigency, unless the tenant
knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
appointed must appear on the return date specified in the attached summons or
contact the clerk of court on or before the return date at .... (contact information) to
request that counsel be appointed.
SECTION 5. 799.09 of the statutes is amended to read:
799.09 Public information. Information The clerk of court shall disseminate
and publicize throughout the county information regarding the existence, location,
and hours of the circuit court's small claims system shall be disseminated and
publicized throughout the county by the clerk of court. Each county shall produce
and make available to all litigants in small claims actions publications explaining
the procedures to be followed by litigants in small claims actions and information
regarding the rights of tenants in residential eviction actions to have counsel
provided at public expense, as provided under s.799.425.
SECTION 6. 799.12 (6) (c) (intro.) of the statutes is amended to read:
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SECTION 6
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799.12 (6) (c) (intro.) If the defendant's post-office address cannot be
ascertained with reasonable diligence, the mailing may be omitted and service may
be made by publishing as a class 1 notice under ch. 985 a notice in substantially the
following form, except as provided in s. 799.22 (4) (b) 3., along with the notice
required under s. 799.05 (8), if applicable:
SECTION 7. 799.14 (2) of the statutes is amended to read:
799.14 (2) EFFECT OF ACTUAL APPEARANCE. This section shall not apply to a
defendant who actually appeared and submitted to the jurisdiction of the court
without filing application as provided in sub. (1), unless the defendant is a tenant in
a residential eviction action who was not represented by counsel and did not waive
the tenant's right to counsel as provided under s. 799.425 (1) (b).
SECTION 8. 799.16 (3) (b) of the statutes is amended to read:
799.16 (3) (b) In all other cases where in which the summons and complaint
are returned with proof that the defendant cannot be served with personal or
substituted service within the state under s. 799.12 (1), the court shall, on the return
date, adjourn the case to a day certain not less than 7 days from the return date, and
the plaintiff shall affix a notice in substantial conformity with sub. (4) (c) or (d) onto
some part of the premises where it may be conveniently read. At least 5 days prior
to the return date, an additional copy of said notice, together with a copy of the
summons and complaint, shall be mailed to the defendant at the last-known
address, even if it is the premises which are the subject of the action.
SECTION 9. 799.16 (4) (c) (title) of the statutes is amended to read:
799.16 (4) (c) (title) Notice in nonresidential eviction.
SECTION 10. 799.16 (4) (d) of the statutes is created to read:
799.16 (4) (d) Notice in residential eviction.
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SECTION 10 ASSEMBLY BILL 698
STATE OF WISCONSIN
CIRCUIT COURT
.... COUNTY
TO:
Take notice that an eviction action has been commenced against you to recover
the possession of the following described premises ...., of which I, the plaintiff, am
entitled to possession, but which you have unlawfully detained from me.
Unless you appear and defend on the .... day of ...., .... (year), at .... o'clock ..M.,
in the circuit court of .... county, located in the courthouse in the city of ...., before the
Honorable ...., a Judge of said court, or before any judge to whom the action may be
assigned, judgment may be rendered against you for the restitution of said premises
and for costs.
NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
As provided under s. 799.425 of the Wisconsin Statutes, you have a right to
counsel in the eviction action at public expense and, once referred to the state public
defender, the state public defender shall appoint counsel for you under s. 977.08 of
the Wisconsin Statutes without a determination of indigency, unless you knowingly
and voluntarily waive the right to counsel. If you want counsel appointed for you,
you must appear on the date specified above or contact the clerk of court on or before
that date at .... (contact information) to request that counsel be appointed.
Dated: ...., .... (year)
.... Plaintiff
By .... Plaintiff's Attorney
SECTION 11. 799.20 (title) of the statutes is amended to read:
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SECTION 11
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799.20 (title) Answer; counterclaim and cross complaint; tenant
request for counsel.
SECTION 12. 799.20 (1) of the statutes is amended to read:
799.20 (1) PLEADING ON RETURN DATE OR ADJOURNED DATE. On the return date
of the summons or any adjourned date thereof, the defendant may answer, move to
dismiss under s. 802.06 (2), or otherwise respond to the complaint or, if applicable,
request the appointment of counsel under s. 799.425.
SECTION 13. 799.20 (3) of the statutes is created to read:
799.20 (3) TENANT REQUEST FOR APPOINTMENT OF COUNSEL. If, on or before the
return date of the summons or any adjourned date thereof, a tenant in a residential
eviction action contacts the clerk of court to request the appointment of counsel, the
court or circuit court commissioner shall appoint counsel for the tenant under s.
799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).
SECTION 14. 799.20 (4) of the statutes is renumbered 799.20 (4) (intro.) and
amended to read:
799.20 (4) INQUIRY OF DEFENDANT WHO APPEARS ON RETURN DATE. (intro.) If the
defendant appears on the return date of the summons or any adjourned date thereof,
all of the following apply:
(b) If par. (a) does not apply or if the defendant who is a residential tenant is
represented by counsel or waives the tenant's right to counsel, the court or circuit
court commissioner shall make sufficient inquiry of the defendant to determine
whether the defendant claims a defense to the action.
(c) If it appears to the court or circuit court commissioner under par. (b) that
the defendant claims a defense to the action, the court or circuit court commissioner
shall schedule a trial of all the issues involved in the action, unless the parties
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SECTION 14 ASSEMBLY BILL 698
stipulate otherwise or the action is subject to immediate dismissal. In a residential
eviction action, the court or circuit court commissioner shall hold and complete a
court or jury trial of the issue of possession of the premises involved in the action
within 30 days of the return date of the summons or, any adjourned date thereof, or
the return date set when a stay under s. 799.40 (4) (c) is lifted, unless the parties
stipulate otherwise or the action is subject to immediate dismissal.
SECTION 15. 799.20 (4) (a) of the statutes is created to read:
799.20 (4) (a) In a residential eviction action, the court or circuit court
commissioner shall make sufficient inquiry of a defendant who is a tenant and who
is not represented by counsel to determine whether the tenant waives the tenant's
right to counsel as provided under s. 799.425 (1) (b). If the tenant does not waive the
tenant's right to counsel, the court or circuit court commissioner shall appoint
counsel under s. 799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).
SECTION 16. 799.206 (3) of the statutes is amended to read:
799.206 (3) When Subject to s. 799.20 (4) (a), when all parties appear in person
or by their attorneys on the return date in an eviction, garnishment, or replevin
action and any party raises valid legal grounds for a contest, the matter shall be
forthwith scheduled for a hearing, to be held as soon as possible before a judge and,
in the case of an eviction action, not more than 30 days after the return date.
SECTION 17. 799.207 (1) (a) of the statutes is amended to read:
799.207 (1) (a) Any Except as provided in s. 799.20 (4) (a), a circuit court
commissioner assigned to assist in small claims matters may hold a conference with
the parties or their attorneys or both on the return date, examine pleadings, and
identify issues.
SECTION 18. 799.207 (1) (b) of the statutes is amended to read:
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SECTION 18
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799.207 (1) (b) Except as provided in par. (e), and s. 799.20 (4) (a), the circuit
court commissioner shall render a decision shall be rendered by the circuit court
commissioner on the return date if there is time available for a hearing, the parties
do not intend to call witnesses, and the parties agree to such a hearing. If, for any
of the reasons stated in this paragraph, the matter cannot be heard on the return
date, an adjourned date shall be set.
SECTION 19. 799.21 (2) of the statutes is amended to read:
799.21 (2) TRIAL BY COURT. If trial is to the court, the case may, with the consent
of all the parties and subject to s. 799.20 (4) (a), be tried on the return day.
SECTION 20. 799.22 (2) of the statutes is amended to read:
799.22 (2) WHEN DEFENDANT FAILS TO APPEAR OR REQUEST APPOINTMENT OF
COUNSEL. If the defendant fails to appear on the return date or on the date set for trial
and the defendant has not requested the appointment of counsel under s. 799.20 (3),
the court may enter a judgment upon due proof of facts which that show the plaintiff
entitled thereto.
SECTION 21. 799.22 (4) (b) 4. of the statutes is created to read:
799.22 (4) (b) 4. In a residential eviction action, if a defendant who is a tenant
attempts to join issue without appearing on the return date, regardless of whether
the tenant's answer is proper under the rule, and if it appears that the tenant is not
represented by counsel, the proceedings shall be automatically stayed until the court
or circuit court commissioner makes the inquiry of the tenant described under s.
799.20 (4) (a).
SECTION 22. 799.40 (4) (c) of the statutes is created to read:
799.40 (4) (c) The court shall stay the proceedings in a civil action of eviction
against a residential tenant who is not represented by counsel if the tenant requests
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SECTION 22 ASSEMBLY BILL 698
the appointment of counsel under s. 799.20 (3) or the tenant, in an inquiry under s.
799.20 (4) (a), does not waive the tenant's right to counsel. If the court grants a stay
under this paragraph, the stay remains in effect until counsel is appointed for the
tenant under s. 799.425 (2) or (3), the tenant retains counsel of the tenant's own
choosing, or the tenant waives the tenant's right to counsel as provided under s.
799.425 (1) (b), whichever occurs first. Notwithstanding s. 704.17 (4), the tenant is
entitled to continued possession or occupancy of the residential premises while the
stay remains in effect. When the court lifts the stay, the court shall set a new return
date.
SECTION 23. 799.41 (1) of the statutes is amended to read:
799.41 (1) The complaint in an eviction action shall be in writing and
subscribed by the plaintiff or attorney in accordance with s. 802.05. The complaint
shall identify the parties and the real property which that is the subject of the action,
specify whether the real property is residential, and state the facts which that
authorize the removal of the defendant. The description of real property is sufficient,
whether or not it is specific, if it reasonably identifies what is described. A
description by street name and number is sufficient. If the complaint relates only
to a portion of described real estate property, that portion shall be identified. If a
claim in addition to the claim for restitution is joined under s. 799.40 (2), the claim
shall be separately stated. The prayer shall be for the removal of the defendant or
the property or both and, if an additional claim is joined, for the other relief sought
by the plaintiff.
SECTION 24. 799.425 of the statutes is created to read:
799.425 Right to counsel in residential eviction actions. (1) RIGHT TO
LEGAL REPRESENTATION. (a) Except as provided in pars. (b) and (c), in an action of
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SECTION 24
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eviction against a tenant whose residential tenancy has been terminated for any
reason, the tenant shall be afforded legal representation at all stages of the
proceedings.
(b) A residential tenant may waive the tenant's right to counsel under par. (a)
if the court is satisfied that the waiver is knowingly and voluntarily made and the
court accepts the waiver.
(c) A residential tenant is presumed to have waived the tenant's right to counsel
under par. (a) if the tenant does any of the following:
1. Fails to request the appointment of counsel under s. 799.20 (3) and fails to
appear on the return date or on the date set for trial as provided under s. 799.22 (2).
2. Retains counsel of the tenant's own choosing who enters a notice of
appearance on behalf of the tenant.
(d) In a proceeding under s. 799.14 (1) to set aside a judgment entered or for
an opportunity to be heard upon the merits, a residential tenant who waived the
tenant's right to counsel under par. (b) or who is presumed to have waived the
tenant's right to counsel under par. (c) is entitled to legal representation under par.
(a). If it appears that the tenant is not represented by counsel in the proceeding, the
court shall make the inquiry of the tenant described under s. 799.20 (4) (a).
(2) POWER OF COURT TO APPOINT COUNSEL. At any time, upon request or on the
court's own motion, the court may appoint counsel for a residential tenant entitled
to legal representation under sub. (1) (a).
(3) PROVIDING COUNSEL. If a residential tenant is entitled to legal
representation under sub. (1) (a) and the tenant does not waive, and is not presumed
to have waived, the tenant's right to counsel under sub. (1) (b) or (c), the court shall
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SECTION 24 ASSEMBLY BILL 698
refer the tenant to the state public defender, and the state public defender shall
appoint counsel under s. 977.08 without a determination of indigency.
(4) DISCHARGE OF COUNSEL. If a residential tenant waives, or is presumed to
have waived, the tenant's right to counsel under sub. (1) (b) or (c), the court may
discharge counsel.
(5) RETAINED COUNSEL. Notwithstanding subs. (1) to (3), a residential tenant
is entitled to retain counsel of the tenant's own choosing at the tenant's own expense.
SECTION 25. 977.02 (2m) of the statutes is amended to read:
977.02 (2m) Promulgate rules regarding eligibility for legal services under this
chapter, including legal services for persons who are entitled to be represented by
counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60,
55.105, 799.425, 938.23 (4), or 980.03 (2) (a).
SECTION 26. 977.05 (4) (gm) of the statutes is amended to read:
977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept
referrals from judges and courts for the provision of legal services without a
determination of indigency of children who are entitled to be represented by counsel
under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel
under s. 51.60, 55.105, 799.425, or 980.03 (2) (a), appoint counsel in accordance with
contracts and policies of the board, and inform the referring judge or court of the
name and address of the specific attorney who has been assigned to the case.
SECTION 27. 977.05 (4) (i) 10. of the statutes is created to read:
977.05 (4) (i) 10. Cases involving persons who are entitled to counsel under s.
799.425.
SECTION 28. 977.08 (1) of the statutes is amended to read:
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SECTION 28
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977.08 (1) If the representative or the authority for indigency determinations
specified under s. 977.07 (1) refers a case to or within the office of the state public
defender or if a case is referred under s. 48.23 (4), 51.60, 55.105, 799.425, 938.23 (4),
or 980.03 (2) (a), the state public defender shall assign counsel according to subs. (3)
and (4). If a defendant makes a request for change of attorney assignment, the
change of attorney must be approved by the circuit court.
SECTION 29. 977.08 (2) (intro.) of the statutes is amended to read:
977.08 (2) (intro.) All attorneys in a county shall be notified in writing by the
state public defender that a set of lists is being prepared of attorneys willing to
represent persons referred under s. 48.23 (4), 51.60, 55.105, 799.425, 938.23 (4), or
980.03 (2) (a) and indigent clients in the following:
SECTION 30. 977.08 (2) (i) of the statutes is created to read:
977.08 (2) (i) Cases involving persons who are entitled to counsel under s.
799.425.
SECTION 31.0Initial applicability.
(1) The treatment of ss. 704.145 (2), 704.17 (4), 799.05 (8), 799.12 (6) (c), 799.14
(2), 799.16 (3) (b) and (4) (d), 799.20 (1) and (3), 799.22 (4) (b) 4., 799.40 (4) (c), 799.41
(1), and 799.425, the renumbering and amendment of s. 799.20 (4), and the creation
of s. 799.20 (4) (a) first apply to a residential eviction action commenced on the
effective date of this subsection.
(2) The treatment of s. 704.145 (1) first applies to a residential rental
agreement or addendum to an agreement entered into, modified, or renewed on the
effective date of this subsection.
(END)
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