WI
Wisconsin Senate Bill SB658

Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB658 Compare Versions

Only one version of the bill is available at this time.
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33 2023 - 2024 LEGISLATURE
44 2023 SENATE BILL 658
55 November 9, 2023 - Introduced by Senators LARSON, L. JOHNSON and HESSELBEIN,
66 cosponsored by Representatives CLANCY, J. ANDERSON, MADISON, PALMERI,
77 BALDEH, BARE, CABRERA, DRAKE, EMERSON, SHELTON, SINICKI, SNODGRASS,
88 STUBBS, HONG, CONLEY, JOERS, JACOBSON and MOORE OMOKUNDE. Referred to
99 Committee on Housing, Rural Issues and Forestry.
1010 AN ACT to renumber and amend 799.20 (4); to amend 704.17 (4), 799.09,
1111 799.12 (6) (c) (intro.), 799.14 (2), 799.16 (3) (b), 799.16 (4) (c) (title), 799.20 (title),
1212 799.20 (1), 799.206 (3), 799.207 (1) (a), 799.207 (1) (b), 799.21 (2), 799.22 (2),
1313 799.41 (1), 977.02 (2m), 977.05 (4) (gm), 977.08 (1) and 977.08 (2) (intro.); and
1414 to create 20.550 (1) (b), 704.145, 799.05 (8), 799.16 (4) (d), 799.20 (3), 799.20
1515 (4) (a), 799.22 (4) (b) 4., 799.40 (4) (c), 799.425, 977.05 (4) (i) 10. and 977.08 (2)
1616 (i) of the statutes; relating to: a residential tenant's right to counsel in an
1717 eviction action and making an appropriation.
1818 Analysis by the Legislative Reference Bureau
1919 This bill generally provides that a residential tenant has the right to counsel
2020 at public expense in an eviction action.
2121 The bill provides that, in a residential eviction action, a statutory notice must
2222 be attached to the summons informing the tenant that the tenant has the right to
2323 have counsel provided at public expense, and, if service is made by publication, the
2424 statutory notice also must by published. If a tenant contacts the clerk of court to
2525 request the appointment of counsel, files an answer without the assistance of
2626 counsel, or appears in court without counsel on the return date of the summons, the
2727 bill requires the court or circuit court commissioner to inquire of the tenant whether
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3737 SENATE BILL 658
3838 the tenant waives counsel, and, if the tenant does not waive counsel, the court or
3939 commissioner must appoint counsel and stay the proceedings. Under the bill, such
4040 a stay generally remains in effect until counsel is appointed for the tenant, and the
4141 tenant is entitled to continued possession or occupancy of the premises while the stay
4242 remains in effect. If a tenant is entitled to counsel under the bill, the court may
4343 appoint counsel for the tenant or refer the tenant to the State Public Defender, which
4444 must appoint counsel without a determination of indigency.
4545 The bill also requires that residential rental agreements include a notice of the
4646 tenant's right to counsel in eviction cases, and requires that landlords providing
4747 notice of residential tenant eviction must include in such notice information about
4848 how the tenant has the right to counsel in an eviction action. The required language
4949 of these notices is included in the bill.
5050 For further information see the state and local fiscal estimate, which will be
5151 printed as an appendix to this bill.
5252 The people of the state of Wisconsin, represented in senate and assembly, do
5353 enact as follows:
5454 SECTION 1. 20.550 (1) (b) of the statutes is created to read:
5555 20.550 (1) (b) Counsel for termination of residential tenancy. A sum sufficient
5656 for the cost of providing legal services under s. 977.05 (4) (i) 10.
5757 SECTION 2. 704.145 of the statutes is created to read:
5858 704.145 Notices of right to counsel in eviction actions. (1) A residential
5959 rental agreement shall include the following notice in the agreement or in an
6060 addendum to the agreement:
6161 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
6262 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
6363 tenant whose residential tenancy has been terminated for any reason, the tenant has
6464 a right to counsel at public expense and, once referred to the state public defender,
6565 the state public defender shall appoint counsel for the tenant under s. 977.08 of the
6666 Wisconsin Statutes without a determination of indigency, unless the tenant
6767 knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
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8484 SECTION 2
8585 SENATE BILL 658
8686 appointed in an eviction action must appear on the date specified in the summons
8787 or request that counsel be appointed by contacting the clerk of court of the county in
8888 which the residential eviction action has been brought on or before the return date
8989 specified in the summons. A tenant is advised that this notice is only a summary of
9090 the tenant's rights and the specific language of the statutes governs in all instances.
9191 (2) A landlord providing notice under ss. 704.16, 704.17, and 704.19 shall
9292 include in the notice the following information:
9393 RIGHT TO COUNSEL IN EVICTION ACTIONS
9494 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
9595 tenant whose residential tenancy has been terminated for any reason, the tenant has
9696 a right to counsel at public expense and, once referred to the state public defender,
9797 the state public defender shall appoint counsel for the tenant under s. 977.08 of the
9898 Wisconsin Statutes without a determination of indigency, unless the tenant
9999 knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
100100 appointed in an eviction action must appear on the date specified in the summons
101101 or request that counsel be appointed by contacting the clerk of court of the county in
102102 which the residential eviction action has been brought on or before the return date
103103 specified in the summons. A tenant is advised that this notice is only a summary of
104104 the tenant's rights and the specific language of the statutes governs in all instances.
105105 SECTION 3. 704.17 (4) of the statutes is amended to read:
106106 704.17 (4) FORM OF NOTICE AND MANNER OF GIVING. Notice must be in writing and
107107 given as specified in s. 704.21. If so given, and unless ordered otherwise by a court
108108 in an eviction action under ch. 799, the tenant is not entitled to possession or
109109 occupancy of the premises after the date of termination specified in the notice.
110110 SECTION 4. 799.05 (8) of the statutes is created to read:
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137137 SECTION 4 SENATE BILL 658
138138 799.05 (8) NOTICE OF RIGHT TO COUNSEL IN RESIDENTIAL EVICTION ACTIONS. In a
139139 residential eviction action, a notice shall be attached to the summons informing the
140140 tenant that the tenant has the right to have counsel provided at public expense, as
141141 provided under s. 799.425. The notice shall be substantially in the following form:
142142 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
143143 As provided under s. 799.425 of the Wisconsin Statutes, in an action against a
144144 tenant whose residential tenancy has been terminated for any reason, the tenant has
145145 a right to counsel at public expense and, once referred to the state public defender,
146146 the state public defender shall appoint counsel for the tenant under s. 977.08 of the
147147 Wisconsin Statutes without a determination of indigency, unless the tenant
148148 knowingly and voluntarily waives the right to counsel. A tenant who wants counsel
149149 appointed must appear on the return date specified in the attached summons or
150150 contact the clerk of court on or before the return date at .... (contact information) to
151151 request that counsel be appointed.
152152 SECTION 5. 799.09 of the statutes is amended to read:
153153 799.09 Public information. Information The clerk of court shall disseminate
154154 and publicize throughout the county information regarding the existence, location,
155155 and hours of the circuit court's small claims system shall be disseminated and
156156 publicized throughout the county by the clerk of court. Each county shall produce
157157 and make available to all litigants in small claims actions publications explaining
158158 the procedures to be followed by litigants in small claims actions and information
159159 regarding the rights of tenants in residential eviction actions to have counsel
160160 provided at public expense, as provided under s.799.425.
161161 SECTION 6. 799.12 (6) (c) (intro.) of the statutes is amended to read:
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188188 SECTION 6
189189 SENATE BILL 658
190190 799.12 (6) (c) (intro.) If the defendant's post-office address cannot be
191191 ascertained with reasonable diligence, the mailing may be omitted and service may
192192 be made by publishing as a class 1 notice under ch. 985 a notice in substantially the
193193 following form, except as provided in s. 799.22 (4) (b) 3., along with the notice
194194 required under s. 799.05 (8), if applicable:
195195 SECTION 7. 799.14 (2) of the statutes is amended to read:
196196 799.14 (2) EFFECT OF ACTUAL APPEARANCE. This section shall not apply to a
197197 defendant who actually appeared and submitted to the jurisdiction of the court
198198 without filing application as provided in sub. (1), unless the defendant is a tenant in
199199 a residential eviction action who was not represented by counsel and did not waive
200200 the tenant's right to counsel as provided under s. 799.425 (1) (b).
201201 SECTION 8. 799.16 (3) (b) of the statutes is amended to read:
202202 799.16 (3) (b) In all other cases where in which the summons and complaint
203203 are returned with proof that the defendant cannot be served with personal or
204204 substituted service within the state under s. 799.12 (1), the court shall, on the return
205205 date, adjourn the case to a day certain not less than 7 days from the return date, and
206206 the plaintiff shall affix a notice in substantial conformity with sub. (4) (c) or (d) onto
207207 some part of the premises where it may be conveniently read. At least 5 days prior
208208 to the return date, an additional copy of said notice, together with a copy of the
209209 summons and complaint, shall be mailed to the defendant at the last-known
210210 address, even if it is the premises which are the subject of the action.
211211 SECTION 9. 799.16 (4) (c) (title) of the statutes is amended to read:
212212 799.16 (4) (c) (title) Notice in nonresidential eviction.
213213 SECTION 10. 799.16 (4) (d) of the statutes is created to read:
214214 799.16 (4) (d) Notice in residential eviction.
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241241 SECTION 10 SENATE BILL 658
242242 STATE OF WISCONSIN
243243 CIRCUIT COURT
244244 .... COUNTY
245245 TO:
246246 Take notice that an eviction action has been commenced against you to recover
247247 the possession of the following described premises ...., of which I, the plaintiff, am
248248 entitled to possession, but which you have unlawfully detained from me.
249249 Unless you appear and defend on the .... day of ...., .... (year), at .... o'clock ..M.,
250250 in the circuit court of .... county, located in the courthouse in the city of ...., before the
251251 Honorable ...., a Judge of said court, or before any judge to whom the action may be
252252 assigned, judgment may be rendered against you for the restitution of said premises
253253 and for costs.
254254 NOTICE OF RIGHT TO COUNSEL IN EVICTION ACTIONS
255255 As provided under s. 799.425 of the Wisconsin Statutes, you have a right to
256256 counsel in the eviction action at public expense and, once referred to the state public
257257 defender, the state public defender shall appoint counsel for you under s. 977.08 of
258258 the Wisconsin Statutes without a determination of indigency, unless you knowingly
259259 and voluntarily waive the right to counsel. If you want counsel appointed for you,
260260 you must appear on the date specified above or contact the clerk of court on or before
261261 that date at .... (contact information) to request that counsel be appointed.
262262 Dated: ...., .... (year)
263263 .... Plaintiff
264264 By .... Plaintiff's Attorney
265265 SECTION 11. 799.20 (title) of the statutes is amended to read:
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292292 SECTION 11
293293 SENATE BILL 658
294294 799.20 (title) Answer; counterclaim and cross complaint; tenant
295295 request for counsel.
296296 SECTION 12. 799.20 (1) of the statutes is amended to read:
297297 799.20 (1) PLEADING ON RETURN DATE OR ADJOURNED DATE. On the return date
298298 of the summons or any adjourned date thereof, the defendant may answer, move to
299299 dismiss under s. 802.06 (2), or otherwise respond to the complaint or, if applicable,
300300 request the appointment of counsel under s. 799.425.
301301 SECTION 13. 799.20 (3) of the statutes is created to read:
302302 799.20 (3) TENANT REQUEST FOR APPOINTMENT OF COUNSEL. If, on or before the
303303 return date of the summons or any adjourned date thereof, a tenant in a residential
304304 eviction action contacts the clerk of court to request the appointment of counsel, the
305305 court or circuit court commissioner shall appoint counsel for the tenant under s.
306306 799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).
307307 SECTION 14. 799.20 (4) of the statutes is renumbered 799.20 (4) (intro.) and
308308 amended to read:
309309 799.20 (4) INQUIRY OF DEFENDANT WHO APPEARS ON RETURN DATE. (intro.) If the
310310 defendant appears on the return date of the summons or any adjourned date thereof,
311311 all of the following apply:
312312 (b) If par. (a) does not apply or if the defendant who is a residential tenant is
313313 represented by counsel or waives the tenant's right to counsel, the court or circuit
314314 court commissioner shall make sufficient inquiry of the defendant to determine
315315 whether the defendant claims a defense to the action.
316316 (c) If it appears to the court or circuit court commissioner under par. (b) that
317317 the defendant claims a defense to the action, the court or circuit court commissioner
318318 shall schedule a trial of all the issues involved in the action, unless the parties
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345345 SECTION 14 SENATE BILL 658
346346 stipulate otherwise or the action is subject to immediate dismissal. In a residential
347347 eviction action, the court or circuit court commissioner shall hold and complete a
348348 court or jury trial of the issue of possession of the premises involved in the action
349349 within 30 days of the return date of the summons or, any adjourned date thereof, or
350350 the return date set when a stay under s. 799.40 (4) (c) is lifted, unless the parties
351351 stipulate otherwise or the action is subject to immediate dismissal.
352352 SECTION 15. 799.20 (4) (a) of the statutes is created to read:
353353 799.20 (4) (a) In a residential eviction action, the court or circuit court
354354 commissioner shall make sufficient inquiry of a defendant who is a tenant and who
355355 is not represented by counsel to determine whether the tenant waives the tenant's
356356 right to counsel as provided under s. 799.425 (1) (b). If the tenant does not waive the
357357 tenant's right to counsel, the court or circuit court commissioner shall appoint
358358 counsel under s. 799.425 (2) or (3) and stay the proceedings under s. 799.40 (4) (c).
359359 SECTION 16. 799.206 (3) of the statutes is amended to read:
360360 799.206 (3) When Subject to s. 799.20 (4) (a), when all parties appear in person
361361 or by their attorneys on the return date in an eviction, garnishment, or replevin
362362 action and any party raises valid legal grounds for a contest, the matter shall be
363363 forthwith scheduled for a hearing, to be held as soon as possible before a judge and,
364364 in the case of an eviction action, not more than 30 days after the return date.
365365 SECTION 17. 799.207 (1) (a) of the statutes is amended to read:
366366 799.207 (1) (a) Any Except as provided in s. 799.20 (4) (a), a circuit court
367367 commissioner assigned to assist in small claims matters may hold a conference with
368368 the parties or their attorneys or both on the return date, examine pleadings, and
369369 identify issues.
370370 SECTION 18. 799.207 (1) (b) of the statutes is amended to read:
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398398 SECTION 18
399399 SENATE BILL 658
400400 799.207 (1) (b) Except as provided in par. (e), and s. 799.20 (4) (a), the circuit
401401 court commissioner shall render a decision shall be rendered by the circuit court
402402 commissioner on the return date if there is time available for a hearing, the parties
403403 do not intend to call witnesses, and the parties agree to such a hearing. If, for any
404404 of the reasons stated in this paragraph, the matter cannot be heard on the return
405405 date, an adjourned date shall be set.
406406 SECTION 19. 799.21 (2) of the statutes is amended to read:
407407 799.21 (2) TRIAL BY COURT. If trial is to the court, the case may, with the consent
408408 of all the parties and subject to s. 799.20 (4) (a), be tried on the return day.
409409 SECTION 20. 799.22 (2) of the statutes is amended to read:
410410 799.22 (2) WHEN DEFENDANT FAILS TO APPEAR OR REQUEST APPOINTMENT OF
411411 COUNSEL. If the defendant fails to appear on the return date or on the date set for trial
412412 and the defendant has not requested the appointment of counsel under s. 799.20 (3),
413413 the court may enter a judgment upon due proof of facts which that show the plaintiff
414414 entitled thereto.
415415 SECTION 21. 799.22 (4) (b) 4. of the statutes is created to read:
416416 799.22 (4) (b) 4. In a residential eviction action, if a defendant who is a tenant
417417 attempts to join issue without appearing on the return date, regardless of whether
418418 the tenant's answer is proper under the rule, and if it appears that the tenant is not
419419 represented by counsel, the proceedings shall be automatically stayed until the court
420420 or circuit court commissioner makes the inquiry of the tenant described under s.
421421 799.20 (4) (a).
422422 SECTION 22. 799.40 (4) (c) of the statutes is created to read:
423423 799.40 (4) (c) The court shall stay the proceedings in a civil action of eviction
424424 against a residential tenant who is not represented by counsel if the tenant requests
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451451 SECTION 22 SENATE BILL 658
452452 the appointment of counsel under s. 799.20 (3) or the tenant, in an inquiry under s.
453453 799.20 (4) (a), does not waive the tenant's right to counsel. If the court grants a stay
454454 under this paragraph, the stay remains in effect until counsel is appointed for the
455455 tenant under s. 799.425 (2) or (3), the tenant retains counsel of the tenant's own
456456 choosing, or the tenant waives the tenant's right to counsel as provided under s.
457457 799.425 (1) (b), whichever occurs first. Notwithstanding s. 704.17 (4), the tenant is
458458 entitled to continued possession or occupancy of the residential premises while the
459459 stay remains in effect. When the court lifts the stay, the court shall set a new return
460460 date.
461461 SECTION 23. 799.41 (1) of the statutes is amended to read:
462462 799.41 (1) The complaint in an eviction action shall be in writing and
463463 subscribed by the plaintiff or attorney in accordance with s. 802.05. The complaint
464464 shall identify the parties and the real property which that is the subject of the action,
465465 specify whether the real property is residential, and state the facts which that
466466 authorize the removal of the defendant. The description of real property is sufficient,
467467 whether or not it is specific, if it reasonably identifies what is described. A
468468 description by street name and number is sufficient. If the complaint relates only
469469 to a portion of described real estate property, that portion shall be identified. If a
470470 claim in addition to the claim for restitution is joined under s. 799.40 (2), the claim
471471 shall be separately stated. The prayer shall be for the removal of the defendant or
472472 the property or both and, if an additional claim is joined, for the other relief sought
473473 by the plaintiff.
474474 SECTION 24. 799.425 of the statutes is created to read:
475475 799.425 Right to counsel in residential eviction actions. (1) RIGHT TO
476476 LEGAL REPRESENTATION. (a) Except as provided in pars. (b) and (c), in an action of
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504504 SECTION 24
505505 SENATE BILL 658
506506 eviction against a tenant whose residential tenancy has been terminated for any
507507 reason, the tenant shall be afforded legal representation at all stages of the
508508 proceedings.
509509 (b) A residential tenant may waive the tenant's right to counsel under par. (a)
510510 if the court is satisfied that the waiver is knowingly and voluntarily made and the
511511 court accepts the waiver.
512512 (c) A residential tenant is presumed to have waived the tenant's right to counsel
513513 under par. (a) if the tenant does any of the following:
514514 1. Fails to request the appointment of counsel under s. 799.20 (3) and fails to
515515 appear on the return date or on the date set for trial as provided under s. 799.22 (2).
516516 2. Retains counsel of the tenant's own choosing who enters a notice of
517517 appearance on behalf of the tenant.
518518 (d) In a proceeding under s. 799.14 (1) to set aside a judgment entered or for
519519 an opportunity to be heard upon the merits, a residential tenant who waived the
520520 tenant's right to counsel under par. (b) or who is presumed to have waived the
521521 tenant's right to counsel under par. (c) is entitled to legal representation under par.
522522 (a). If it appears that the tenant is not represented by counsel in the proceeding, the
523523 court shall make the inquiry of the tenant described under s. 799.20 (4) (a).
524524 (2) POWER OF COURT TO APPOINT COUNSEL. At any time, upon request or on the
525525 court's own motion, the court may appoint counsel for a residential tenant entitled
526526 to legal representation under sub. (1) (a).
527527 (3) PROVIDING COUNSEL. If a residential tenant is entitled to legal
528528 representation under sub. (1) (a) and the tenant does not waive, and is not presumed
529529 to have waived, the tenant's right to counsel under sub. (1) (b) or (c), the court shall
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555555 SECTION 24 SENATE BILL 658
556556 refer the tenant to the state public defender, and the state public defender shall
557557 appoint counsel under s. 977.08 without a determination of indigency.
558558 (4) DISCHARGE OF COUNSEL. If a residential tenant waives, or is presumed to
559559 have waived, the tenant's right to counsel under sub. (1) (b) or (c), the court may
560560 discharge counsel.
561561 (5) RETAINED COUNSEL. Notwithstanding subs. (1) to (3), a residential tenant
562562 is entitled to retain counsel of the tenant's own choosing at the tenant's own expense.
563563 SECTION 25. 977.02 (2m) of the statutes is amended to read:
564564 977.02 (2m) Promulgate rules regarding eligibility for legal services under this
565565 chapter, including legal services for persons who are entitled to be represented by
566566 counsel without a determination of indigency, as provided in s. 48.23 (4), 51.60,
567567 55.105, 799.425, 938.23 (4), or 980.03 (2) (a).
568568 SECTION 26. 977.05 (4) (gm) of the statutes is amended to read:
569569 977.05 (4) (gm) In accordance with the standards under pars. (h) and (i), accept
570570 referrals from judges and courts for the provision of legal services without a
571571 determination of indigency of children who are entitled to be represented by counsel
572572 under s. 48.23 or 938.23 or persons who are entitled to be represented by counsel
573573 under s. 51.60, 55.105, 799.425, or 980.03 (2) (a), appoint counsel in accordance with
574574 contracts and policies of the board, and inform the referring judge or court of the
575575 name and address of the specific attorney who has been assigned to the case.
576576 SECTION 27. 977.05 (4) (i) 10. of the statutes is created to read:
577577 977.05 (4) (i) 10. Cases involving persons who are entitled to counsel under s.
578578 799.425.
579579 SECTION 28. 977.08 (1) of the statutes is amended to read:
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604604 LRB-4930/1
605605 CMH/JAM/KRP:cjs
606606 SECTION 28
607607 SENATE BILL 658
608608 977.08 (1) If the representative or the authority for indigency determinations
609609 specified under s. 977.07 (1) refers a case to or within the office of the state public
610610 defender or if a case is referred under s. 48.23 (4), 51.60, 55.105, 799.425, 938.23 (4),
611611 or 980.03 (2) (a), the state public defender shall assign counsel according to subs. (3)
612612 and (4). If a defendant makes a request for change of attorney assignment, the
613613 change of attorney must be approved by the circuit court.
614614 SECTION 29. 977.08 (2) (intro.) of the statutes is amended to read:
615615 977.08 (2) (intro.) All attorneys in a county shall be notified in writing by the
616616 state public defender that a set of lists is being prepared of attorneys willing to
617617 represent persons referred under s. 48.23 (4), 51.60, 55.105, 799.425, 938.23 (4), or
618618 980.03 (2) (a) and indigent clients in the following:
619619 SECTION 30. 977.08 (2) (i) of the statutes is created to read:
620620 977.08 (2) (i) Cases involving persons who are entitled to counsel under s.
621621 799.425.
622622 SECTION 31.0Initial applicability.
623623 (1) The treatment of ss. 704.145 (2), 704.17 (4), 799.05 (8), 799.12 (6) (c), 799.14
624624 (2), 799.16 (3) (b) and (4) (d), 799.20 (1) and (3), 799.22 (4) (b) 4., 799.40 (4) (c), 799.41
625625 (1), and 799.425, the renumbering and amendment of s. 799.20 (4), and the creation
626626 of s. 799.20 (4) (a) first apply to a residential eviction action commenced on the
627627 effective date of this subsection.
628628 (2) The treatment of s. 704.145 (1) first applies to a residential rental
629629 agreement or addendum to an agreement entered into, modified, or renewed on the
630630 effective date of this subsection.
631631 (END)
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