The Wisconsin Supreme Court has accepted the petition for review in Zignego v. Wisconsin Elections Commission, the case surrounding the Wisconsin Elections Commission’s decision not to deactivate the registrations of Wisconsin voters who had recently moved.

 

Background

Wis. Stat. § 6.50(3) provides that, if a municipal clerk or “board of election commissioners” receives information that voters have moved, it must notify the voters. If a notified voter fails to respond to the notice within 30 days, the municipal clerk or “board of election commissioners” is required to change the voter registration status to ineligible. At issue in this case is whether “board of election commissioners” refers to the Wisconsin Elections Commission.

The Wisconsin Elections Commission in 2017 received from a third-party data corporation a report on voters who may have moved. Based on that data, the Commission sent notices to those voters stating that they had 30 days to respond or their registration status would switch to ineligible. The Commission subsequently deregistered those individuals who did not respond to the notice.

After receiving another report on voters who may have moved in 2019, the Commission, citing worries about inaccurate data from the 2017 report, sent out a notice to those voters but declined to state the Commission would deregister voters who did not respond.

Subsequently the plaintiffs filed this lawsuit alleging that the Commission violated § 6.50(3) by not deregistering the voters who had not responded to the notice. The Commission argued § 6.50(3) did not apply, as the Commission is not a “board of election commissioners.”

 

Lower Court Decisions

The circuit court ruled in favor of the plaintiffs and issued a writ of mandamus ordering the Commission to deactivate the voters. When the Commission did not deactivate the voters, the court found the Commission in contempt of court. The Commission sought a petition to bypass the Court of Appeals, but the Supreme Court rejected the petition. The next day, the Court of Appeals granted the Commission’s appeal and issued a stay of the circuit court’s writ of mandamus and contempt order.

The Court of Appeals later issued a decision agreeing with the Commission that the term “board of election commissioners” in § 6.50(3) does not refer to the Commission. The Court of Appeals ordered the plaintiffs’ causes of actions dismissed and reversed the circuit court’s writ of mandamus and contempt order against the Commission.

 

Supreme Court Order

Plaintiffs, represented by Wisconsin Institute for Law & Liberty, filed a petition for review by the Wisconsin Supreme Court. The court accepted that petition on June 1. With 2020 elections just a few months away, the court will review whether state law requires the Commission to deactivate the voters at issue.

 

Other New Cases

The Supreme Court has also accepted:

Collison v. City of Milwaukee Bd. of Review, reviewing Milwaukee’s practices for assessing properties with environmental pollution.

Christus Lutheran Church v. Wisconsin DOT, evaluating whether the state Department of Transportation must obtain a new appraisal in jurisdictional offers where it believes additional compensation beyond the bounds of the initial appraisal is warranted.

Applegate Farm v. Wis DOR, a rulemaking case reviewing whether the Wisconsin Department of Revenue complied with rulemaking procedures in Wis. Stat. Ch. 227 when it promulgated new rules regarding property tax classification.

 

Wisconsin Attorney General Josh Kaul recently joined multistate coalitions in lawsuits on two important issues: the Affordable Care Act (ACA) and federal fuel efficiency standards.

 

Affordable Care Act

AG Kaul has joined five other attorneys general in a brief asking the U.S. Supreme Court to uphold the constitutionality of the ACA.

Wisconsin and Texas had originally led the litigation challenging the ACA under former Wisconsin Attorney General Brad Schimel, but AG Kaul withdrew Wisconsin from the lawsuit after taking office. The lawsuit argues that the ACA’s individual mandate is unconstitutional, and, because the individual mandate is “essential” to the ACA, the remaining provisions of the law are also invalid.

In the latest brief, the attorneys general of Wisconsin, Maine, Maryland, New Hampshire, New Mexico, and Pennsylvania urge the Supreme Court to keep the remaining provisions of the ACA in place. The AGs argue that the individual mandate is severable from the remainder of the ACA’s substantive provisions. The AGs also argue that states rely on the ACA for their health care systems and that the ACA has increased access to while reducing the costs of health care.

 

Fuel Efficiency Standards

 AG Kaul has also joined a multistate coalition challenging the Trump administration’s rollback of fuel efficiency standards.

The federal National Highway Traffic Safety Administration and Environmental Protection Agency in late March issued a final rule amending fuel economy and CO2 emissions standards for passenger cars and light trucks. The rule increases stringency of standards by 1.5 percent each year through model year 2026, whereas standards issued by the previous administration in 2012 would have required 5 percent annual increases. NHTSA and EPA touted the rule as balancing environmental protection, regulatory costs for manufacturers, and affordability for consumers.

The attorneys general filed a lawsuit arguing the rule violates the Clean Air Act, Energy Policy & Conservation Act and Administrative Procedure Act. According to AG Kaul, the coalition plans to argue that the rule violates congressional mandates in these Acts and that NHTSA and EPA improperly relied on erroneous information in their analysis supporting the standards.

 

In Correa v. Woodman’s Food Market (2020 WI 43), a 6-0 Wisconsin Supreme Court held that plaintiffs in safe place statute cases need not prove the exact moment an unsafe condition existed, as long as they can prove the condition existed for long enough for the defendant to have had constructive notice. In this case, the court said the jury can infer from video evidence that the unsafe condition existed for long enough to give the defendant constructive notice

 

Facts

In this case, plaintiff Jose Correa slipped and fell on an unidentified substance in a Woodman’s store and subsequently filed a safe-place-statute (Wis. Stat. § 101.11(1)) claim against Woodman’s.

Video footage from the Woodman’s store ten minutes before the accident did not show a spill happening and could not identify any substance on the floor of the store. However, a Woodman’s employee testified that he did clean up a substance on the floor after Correa fell and notified the store about the spill.

Woodman’s argued the video evidence could not prove the store had constructive notice of the spill. Though Correa couldn’t determine the exact moment the spill occurred, he argued that the video evidence showed the spill had existed for at least ten minutes, enough to give Woodman’s constructive notice.

 

Decision

The Supreme Court ruled in favor of Correa, determining that Correa did not need to provide evidence of the exact time of the spill for his safe place statute claim to proceed. Plaintiffs like Correa only need to determine that unsafe conditions (in this case the spill) existed for long enough to give stores constructive notice. In this case, the court said the jury could infer from the video evidence that the spill had existed for at least ten minutes, long enough for Woodman’s to have constructive notice of the spill.

The court’s decision expands on a similar decision in Kochanski v. Speedway SuperAmerica (2014 WI 72), which similarly dealt with whether juries can draw reasonable inferences from video surveillance in premises liability cases. The Kochanski decision differed from the Correa decision because in that case the plaintiff could not prove that the convenience store had constructive notice. It was unclear from video surveillance in Kochanski at what point in time snowfall became an unsafe condition leading to injury, whereas the jury in Correa could reasonably infer the unsafe condition had existed for at least ten minutes.

* This case is recommended for publication.

 

In Kemper Independence Insurance Co. v. Islami (2019AP488), the Court of Appeals District II agreed with an insurer that coverage was not due to an innocent insured when another insured on the policy committed fraud.

The Islamis were legally separated, though they still lived together. Ydbi Islami intentionally set fire to their home, which Ismet Islami legally owned. Ismet Islami sought coverage from her insurer Kemper for damages from the fire.

The court agreed with Kemper that there was no coverage because Ydbi had lied to Kemper about his actions. The Kemper policy barred coverage if an insured conceals or misrepresents a fact on which the insurer relies or which contributes to the loss.

The court rejected Ismet’s arguments that

• Coverage was not barred because Wisconsin statutes (Wis. Stat. § 631.95) prohibit denial of coverage to a domestic abuse victim based on acts of the abuser. Instead, the court found no evidence that the fire was the result of domestic abuse as defined in statute.
• Ydbi was not an insured under the Kemper policy because the Islamis were legally separated. Although they were legally separated, the court found Ydbi was still Ismet’s “spouse” covered under the insurance contract.
• Ismet was an “innocent insured,” so could not be denied coverage based on Ydbi’s fraud. Instead, the court found the specific language of the fraud provision in the Kemper policy barred coverage for all insureds if one insured committed concealment or fraud. The policy lacked a severability clause to provide coverage to an innocent insured, so Ydbi’s fraud did bar coverage for Ismet.

 

The Wisconsin Supreme Court has issued a 4-3 decision in Legislature v. Palm, declaring the Department of Health Services’s (DHS) “Safer at Home” order unenforceable and immediately striking down the order. The court held that the Safer at Home order is a “rule” that was required to go through statutory rulemaking processes and that the order exceeds DHS’s authority under Wisconsin’s pandemic statutes.

Though the statewide order has been struck down, Dane County and Milwaukee have already announced they will continue to enforce shelter-in-place guidelines. This trend might continue with other cities or counties if they have their own health departments.

According to WisPolitics and the Wheeler Report, Gov. Evers told reporters on Wednesday evening that the administration will soon be releasing framework for an emergency rule to address the pandemic within the parameters of the court decision.

Chief Justice Roggensack, Justice R. Bradley, Justice Kelly, and Justice Ziegler joined in the majority opinion. Several justices also wrote concurrences expanding on the court’s reasoning. Justice Hagedorn, Justice Dallet, and Justice Walsh Bradley dissented.

 

Decision

After Gov. Evers and DHS-designee Andrea Palm extended Wisconsin’s Safer at Home Order to May 26 under Emergency Order #28, the Republican-led Legislature filed this lawsuit challenging DHS’s authority to issue such an order.

In its ruling on May 13, the Supreme Court agreed with the Legislature that:

1. The emergency order is a “rule” under Wisconsin’s administrative procedure law and should have gone through the statutory emergency rulemaking process, which allows for legislative oversight and public input.

Wis. Stat. § 227.01(13), defines a rule, in part, as a “general order of general application.” The court concluded that the Safer at Home order was a “general order of general application” because it regulates a class of all Wisconsinites and anyone else who enters the state. Therefore, because of its broad application, the order becomes a rule that must go through rulemaking requirements, including legislative oversight, in Ch. 227.

The court also held that DHS cannot create and enforce criminal penalties for violation of an order.

Addressing the unusual circumstances of the current pandemic, the court acknowledged that the governor has special emergency powers under § 323.10 to implement emergency measures. The 60 day emergency period declared by the governor would give DHS enough time to promulgate rules to address an emergency if necessary. In this case, Gov. Evers’s emergency declaration expired in mid-May, and DHS illegally sought to extend the Safer at Home measures beyond that date without rulemaking.

 

2. Even if the order does not violate Wisconsin rulemaking laws, the order exceeds DHS’s authority under Wis. Stat. § 252.02.

 The court found that authorities granted by statutes to address epidemics in Ch. 252 do not support the Safer at Home ban on all nonessential and the closure of all nonessential businesses. 2011 Act 21 prohibited state agencies from implementing standards that were not explicitly permitted by statute. The court found that in the Safer at Home order DHS went beyond the parameters for addressing epidemics that the legislature laid out in Ch. 252. While DHS can close things like schools and churches under Ch. 252, DHS does not have the authority to act as broadly as closing all businesses and banning travel. (The court notes that it is not invalidating the provision of the order that closes schools.)

 

The court declined to take up the Legislature’s argument that DHS acted arbitrarily and capriciously by failing to provide a reasoned basis for distinguishing between essential and nonessential businesses.

The Legislature had asked the Wisconsin Supreme Court for a temporary injunction of the Safer at Home order but with several days of lead time for DHS to promulgate an emergency rule to lawfully enforce the order. However, the court decided to enjoin the emergency order immediately, as DHS and the Legislature have had more than two weeks since the lawsuit was filed to begin working on an administrative rule.

 

Concurring Opinions

In a concurring opinion, Chief Justice Roggensack would have stayed the invalidation of the order to May 20 to give the Legislature and administration time to come to an agreement on a valid way to address the pandemic.

In a second concurring opinion, Justice R. Bradley (joined by Justice Kelly) said the DHS Safer at Home order violated constitutional separation of powers because it allowed Secretary Palm to both make the law and execute it. Bradley opined that it is a crucial role of the judiciary to uphold the constitution especially in times of emergency like a pandemic.

In a third concurring opinion, Justice Kelly (joined by Justice R. Bradley) invoked the nondelegation doctrine, which holds that one branch of government cannot delegate its core authority to another branch. In this case, Kelly argued that DHS’s reading of its authority under § 252.02 encroaches on legislative powers. The legislature cannot confer authority to the executive for such far-reaching actions as limiting private gatherings, closing businesses, and banning travel under the vague language in the statutes.

 

Dissents

In a dissent, Justice Walsh Bradley (joined by Justice Dallet) expressed concern at the confusion created by Chief Justice Roggensack’s writing the majority opinion immediately invalidating the Safer at Home order but also writing separately that she would have stayed the enforcement of the decision. Walsh Bradley would have stayed the decision, given the public health consequences of leaving no regulations related to COVID-19 in place.

In a second dissent, Justice Dallet (joined by Justice Walsh Bradley) would have upheld the Safer at Home order because the plain language of Ch. 252 grants DHS broad authority to control communicable diseases. The dissent argues the order is not a rule subject to Ch. 227 because it applies only to immediate circumstances for a limited amount of time. The Dallet dissent further argued that the Legislature did not have standing to bring claims that DHS exceeded its authority under Ch. 252.

In a third dissent, Justice Brian Hagedorn (joined by Justices Walsh Bradley and Dallet) veered from his conservative colleagues on the bench and would have upheld the Safer at Home order. The dissent argued that the Safer at Home order was not a rule because it applied only to a specific factual circumstance and was not of “general application.” A statewide order like Safer at Home would have to have prospective application to different circumstances to be deemed a rule. Here, the Safer at Home order was a ”general order” because it applied to the whole state but was not of “general application” because it addressed only COVID-19 and applied for a limited time (until May 26).

Similar to the Dallet dissent, Hagedorn also argued the Legislature did not have standing to bring claims that DHS exceeded its authority under Ch. 252. The Legislature itself was not injured by and therefore cannot challenge executive enforcement of that statute.

Hagedorn also took issue with the court’s writings on the nondelegation doctrine in this context and on the unenforceability of criminal penalties in DHS orders.