This week's survey

Last week, the nonpartisan Legislative Fiscal Bureau projected Wisconsin would begin the next budget cycle with a balance of close to $1.9 billion. The LFB also estimated that the state tax revenues between now and the end of the next budget will be $1.2 billion higher than the Evers administration's forecast two months ago. The LFB projections are promising, as the state generated more revenue, in the midst of a pandemic, than originally projected at this time last year.

Due to the increase in revenue, the state will be required to make a deposit into the "Budget Stabilization Fund," which is also known as the "Rainy Day Fund." The $232 million deposit will bring the fund's total to almost $994 million. 

Since the LFB estimates were released last week, there have been calls to begin to spend the "Rainy Day Fund." I would like to hear your thoughts on appropriating these funds. 

Please, take a moment to answer this week's survey question regarding "Rainy Day Fund" spending.

Click here for my survey

Survey results

Thank you to everyone who answered our previous survey question regarding vaccine distribution, it was a pleasure to hear from you.

In total, 193 individuals responded, with thirty-one percent of respondents believing that the Wisconsin Department of Health Services should be responsible for overseeing vaccine distribution. The second most popular answer was local health departments (twenty-nine percent of respondents). 

What is more, seventeen percent of respondents voted "other." Responses include:

"There should be a coalition of multiple government and private entities."

"It should be managed at the local level with distribution managed by the federal government. The state health department should be used to distribute the vaccine to local health departments. Local health departments should partner with local hospitals as needed."

"DHS with assistance from local hospitals and the National Guard. Thus far, the federal government has shown very little guidance to organize this mess." 

"There should not be a vaccine, as vaccines cause more harm than good."

Legislation and votes

Since our last e-update, I have introduced seven pieces of legislation. Six of them were products of the Legislative Council Study Committee on Child Support and Placement that I chaired last session and the other two received unanimous support in the Senate but never received votes in the Senate, due to COVID-19. Most importantly, all seven of these bills have bipartisan support.

LRB-1720: Relating to child support obligations

Under LRB-1720, the formula that applies in a shared physical placement arrangement will be the primary method of calculating child support in Wisconsin. This is a technical cleanup bill that codifies current practice to reflect that shared physical placement arrangements are now very common, and should no longer be deemed "special circumstances." This bill will help avoid switching to a new method for calculating child support payments. It is imperative to note that formulas used to calculate child support amounts are not changed.

Additionally, LRB-1720 makes changes to family support orders. Currently, family support combines portions of child support and maintenance into a single payment. For tax purposes, family support payments are considered maintenance payments, so the payment is deductible to the payor-spouse and taxable to the recipient-spouse. 

Under the federal Tax Cuts and Jobs Act of 2017, maintenance payments, such as family support, are no longer deductible for the payor and not included as income to the recipient. 

Due to this change at the federal level, we are introducing LRB-1720, which eliminates new family support orders to ensure these payments are consistent with current state and federal tax laws.

LRB-1657: Relating to the physical placement of a child

This bill specifies that if a court grants less than twenty-five percent physical placement to a parent, a finding of fact must be entered as to the reason greater placement with said parent is not in the best interest of the child. 

Currently, parents have no understanding of why they are not being awarded placement. This bill allows parents to have clear knowledge of which placement factors they are not meeting. This allows them to work on these issues. Given the trend in shared and substantially equal placement arrangements, there is value in having a court explain the reasoning when physical placement with one parent is limited.

In addition, LRB-1657 reorders statutory best-interest factors, but specifies that the factors are not necessarily listed in order of importance. These factors are being rearranged for easier application. This bill eliminates two considerations: the stability in placement and availability of child care services, as these considerations are already covered in other factors. These two factors kept placement schedules in place, without allowing for parents to adjust to a new way of life after divorce.

LRB-1666: Relating to judicial notice of certain court records

LRB-1666 would allow courts in a family law action involving minor children to take judicial notice of records for specific convictions and restraining orders. The convictions must involve crimes subject to domestic abuse surcharge, crimes against the convicted individual's child, or restraining orders that were ordered by the other parent.

The court is frequently unaware if a family has a history of domestic violence, even when a parent has a conviction or injunction that is publicly available in court records. Judges do not always ask a party about possible history of domestic violence, unless prompted by something in the case file. In addition, victims of domestic violence are often hesitant to speak up about past instances, so judges would be able to look at relevant records themselves.

LRB-1666 would allow judges to have all pertinent information when determining periods of physical placement of a child.

LRB-1715: The Uniformed Deployed Parents Custody and Visitation Act of 2021

LRB-1715 is a piece of Uniform Law Commission legislation, which has already been enacted in fourteen states. It establishes a process and standards for temporary delegation of custodial responsibilities when a parent is deployed in military or national service. During deployment, that parent may grant his or her custodial responsibilities or visitation to stepparents, grandparents, great-grandparents, or adults who have a parent-like relationship with the child. The bill also establishes a timeframe for termination of these temporary custodial responsibilities when the deployed parent returns. The timeframe depends on the length of the deployment. 

Temporary custody and placement arrangements are often challenging for military families during deployment, and this legislation would provide these families with a sense of certainty during deployment.

LRB-1664: Relating to proposed parenting plans

Under current law, divorcing parties are required to file a parenting plan with the court only after mediation fails or if mediation is waived. LRB-1664 requires parents to submit proposed parenting plans to family court services or the mediator at least 10 days before mediation. Parents are not required to exchange parenting plans with each other prior to mediation. 

The parenting plans must include more focus on co-parenting, rather than financial arrangements. Co-parenting proposals are effective in helping parents focus on a child's needs and determining arrangements that work best for the family, without litigation. The effectiveness of the current plan process is largely lost and this bill remedies the current system's failure.

LRB-1719: Relating to exclusion of certain military allowances in determining gross income for purposes of child support

Currently, military service members receive allowances to assist with housing costs. A variable component may be added to the base housing allowance to cover expenses in states with a higher cost of living. For example, service members receive a higher variable housing allowance when stationed in Hawaii, as opposed to Wisconsin.

The Department of Children and Families currently includes variable housing costs when calculating child support payments. When service members are transferred to a state with a lower cost of living, their variable housing allowance is subsequently reduced. Their child support payments are not altered to reflect their reduction in income, unless service members return to court to seek a modification.

Under LRB-1719, DCF would no longer be able to include variable housing costs for determining gross income for child support payments. Instead, DCF would utilize base costs to calculate child support. 

The current use of variable housing costs, leads to an increased number of court actions for a revision of child support upon each military move. The use of base housing costs would create stability and better reflect the variable housing costs purpose. 

LRB-1173: Relating to the presumption of riparian rights on flowages and artificial bodies of water

A Wisconsin Supreme Court ruling, Movrich v. Lobermier (2018), dealt a devastating blow to citizens who own land on one of Wisconsin's two hundred and forty flowages. Ultimately, the court ruled that the public trust doctrine does not allow landowners whose deed does not explicitly grant access to the water bed of flowages, the ability to erect and maintain a pier. Meaning that, unless a landowner's deed explicitly grants the right to the water bed beneath a flowage, the landowner cannot erect a pier.

As Justice Rebecca Bradley stated in her dissent, "riparian rights in Wisconsin are sacred." LRB-1173 will protect the presumed riparian rights that many Wisconsinites believe they are currently entitled to. To ensure the rights of these citizens are protected, this bill establishes that landowners, whose land abuts a flowage or artificial waterway, have the ability to exercise all riparian rights established under law, unless the deed to the property explicitly states otherwise. 

The bill changes no environmental standards. What is more, all land that abuts flowages will be treated as is under current law. The bill does not make it any easier to erect or maintain pier and does not change any language relating to siting, zoning, or mitigation relating to Wisconsin's shoreline zoning laws. 

LRB-0350: Relating to the regulation of home inspections

In Wisconsin, the home-buying process is well-regulated from beginning to end. However, one of the most important parts of the process has been lacking in oversight. A 2018 survey found that the "inspection results were the second leading cause for failure to close." The condition of the home would certainly be a factor as well, however. LRB-0350, by strengthening the training requirements for home inspectors, would provide prospective buyers with peace of mind and comfort knowing that one of the biggest purchases of their lives has been inspected by a thoroughly trained inspector.

LRB-0350 protects residential customers by creating consistency in the home inspection process and home inspection report. The bill further guards the buying public by modifying when a new home inspector must complete training.

Home inspectors are currently required by law to inspect the property and identify items defined statutorily as "defects." However, the law does not require the home inspector to call those items "defects."

LRB-0350 creates consistency in consumer expectations in the home inspection by:

• Modifying the definition of what is considered to be a "defect" for the purpose of a report submitted by the home inspector to a client.
• Requiring home inspectors to note "defects" found during the inspection to be labeled as such in the report, if they satisfy the legal definition of a "defect."
• Requiring the inspection report to contain a number of elements and statements for the report, including a summary page with required statements for the buyer's edification.
• Acknowledging that home inspectors are not more vulnerable to liability by requiring the word "defect" to be used in the inspection report.

In Wisconsin, as long as an individual does not have a disqualifying criminal record, after passing two exams (the closed-book national examination and Wisconsin-specific open-book examination), and registering with the Wisconsin Department of Safety and Professional Services, he or she can become a home inspector. Generally, current law requires an individual to be registered with DSPS to act as a home inspector, or represent himself or herself to be a home inspector.

LRB-0350 retains the requirement that home inspectors be registered, as under current law. However, this bill:

• Requires a new home inspector registrant to complete forty-hours of instruction before taking the exam.
• Exempts newly registered home inspectors from continuing education requirements for the first two renewals of a registration. Current DSPS rules exempt newly registered home inspectors from continuing education requirements for the first renewal period of a registration. 
• Provides reciprocal registration of home inspectors licensed in other states who have comparable or more stringent requirements. 
• Repeals a provision allowing DSPS to use an alternative professional discipline procedure for the home inspector.

Votes

This week, the Assembly approved Assembly Joint Resolution 4, terminating Executive Order 104. Quite simply, the purpose of this joint resolution is to ensure that the rule of law is respected and upheld. My colleagues and I are asking that Governor Evers follow the law, respect the separation of powers clause of the constitution, and afford the legislature the ability to work with him to address COVID-19. 

Extension of an emergency order past sixty days is a violation of state law. Chapter 323 of Wisconsin state statutes makes it clear that a governor may issue an executive order for just sixty days. What is more, Chapter 323 stipulates that an emergency order can only be extended by the legislature through the passage of a joint resolution.

Assembly Joint Resolution 4 invokes the legislative powers authorized by the Wisconsin constitution and state statutes to protect our form of government that includes three separate branches with limited powers, so as to protect the governed from abusive government. Each branch of government has the absolute duty to act as a check against another's abuse of power.

Upon adoption of Assembly Joint Resolution 4, Governor Evers will still have the opportunity to address COVID-19 and keep Wisconsinites safe through other legal options:

1. Any executive branch agency can promulgate emergency rules or permanent rules, under Chapter 227 of Wisconsin statutes. This process allows for both the legislature and the courts to review the rules, as necessary. This is the process employed after the passage of nearly every piece of legislation.

2. Governor Evers and any state agency can issue voluntary guidance or educational materials to assist citizens with developing COVID-19 safety practices that are appropriate for their circumstances.

It is important to denote that the Assembly also amended Assembly Bill 1 to prevent the loss of $49 million in monthly federal food assistance for low-income families. Additionally, the bill contained an amendment protecting other federal funds, particularly those related to unemployment insurance. 

It is imperative to denote that the repeal does not prevent local control as it relates to issuing mask mandates. Counties, municipalities, school boards, and health departments would still have the autonomy to issue orders specific to their respective jurisdictions. 

Republicans have repeatedly stated that this vote is not about masks. Assembly Republicans sent a letter to the governor requesting that they work together on reasonable masking requirements in places that are susceptible to transmission of the virus to those who are especially vulnerable. It also asks Governor Evers and his administration to introduce administrative rules to the legislature as well as requiring the state to pay for COVID-19 tests that anyone may take, free of charge.

Wisconsin law does not allow the legislature to introduce rules for adoption. Only a governor or their agencies may do so. Assembly Republicans, therefore, asked Governor Evers to introduce rules to the legislature for our review that will do the following:

1. Enact reasonable masking requirements in places in Wisconsin that are susceptible to transmission of the virus to those who are especially vulnerable, such as health care facilities, nursing homes, mass transit, state government buildings, assisted living facilities, public schools, universities, and prisons.

2. Allow any private or public entity in the state that would like to require face masking to be allowed to do so on their property.

3. Require the Department of Health Services to pay for COVID-19 tests that anyone may take, free of charge, paid for by the State of Wisconsin.

4. The rules would be in place and reviewed by JCRAR every 30 days for any necessary modifications and would stay in place until a majority of eligible Wisconsinites are voluntarily vaccinated. 

Constituent services

Constituent services is of paramount importance. In addition to responding to your concerns and assisting with casework, you can contact my office for the following:

• To have a Wisconsin or American flag flown over the Capitol.
• Visits to Madison. My staff can help arrange tours of the Capitol (when it is open for business).
• Speaking events or business tours. If you would like me to speak at your community event or tour your workplace, manufacturing site, etc., please contact my office.
• Internships. If you are interested in learning more about state government and are interested in assisting my staff with constituent services, legislation, etc., please contact my office.
• Job shadows. I enjoy having constituents come to Madison to shadow me for a day. If this is of interest to you, please contact my office.
• Constituent meetings. I am available to meet with you to discuss your concerns or ideas you have for legislation. I am available to meet in Madison or the district. 

For more information, please contact my office: Rep.Rob.Brooks@legis.wisconsin.gov or via phone: 608-267-2369. 

Stay up to date

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