Author: Hamilton

Supreme Court and Governor Eliminate Funding for Judicial Council

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Earlier this year, the Supreme Court sent an order to the Department of Administration (DOA) that it will no longer transfer funds to DOA in support of the Judicial Council. Separately, Gov. Scott Walker defunded the Council through a veto in the state budget.

The Supreme Court cited concerns about an “extraordinary” 38 percent salary increase for the Judicial Council staff attorney effective July 1 and the “means and manner” by which the increase was obtained. Justices Ann Walsh Bradley and Shirley Abrahamson dissented, arguing for the Judicial Council’s importance to Wisconsin’s judicial system.

The Judicial Council’s four-person executive committee met in June and voted to raise the Council’s only staff attorney April Southwick’s salary from $59,600 to $82,326. The Wisconsin State Journal reported that on August 1, Director of State Courts Randy Koshnick sent an email to DOA saying that under state law, the executive committee could not authorize a raise without a quorum of 11 council members. According to the Wisconsin State Journal article, in a later email to the Associated Press, Southwick said the raise was meant to increase her salary to the level of “a male judicial branch employee in a similar position.”

After the Supreme Court sent the order to DOA, Gov. Scott Walker issued a veto of provisions relating to the Judicial Council in the state budget. Walker had originally proposed eliminating the Judicial Council, but the Joint Finance Committee and the budget bill as passed by the legislature restored the Council. Walker’s veto did not eliminate the Council, but eliminated funding for the Council. The statute (20.670) creating the Judicial Council remains in place.

Bills of Note: Device Use While Driving

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Last week, the Assembly Committee on Criminal Justice and Public Safety held a public hearing on a bill that would prohibit using electronic devices while driving. The bill expands existing state law prohibiting texting and emailing while driving to include entering, transmitting, or accessing data via an “interactive electronic device.” These infractions would be categorized under “inattentive driving.” Exceptions to device usage include device use for reporting an emergency, verbal communication, navigation, and electronics integrated into the vehicle.

The committee hearing on the bill (AB 463/SB 380), authored by Rep. Ron Tusler (R-Harrison) and Sen. Van Wanggaard (R-Racine), took place on Sept. 21. At the hearing, Tusler said the bill’s expansion of distracted driving prohibitions and increased penalties would discourage the dangerous practice of cell phone use while driving and clarify that texting is considered negligent driving. Tusler said the exceptions give the bill some flexibility and mentioned the possibility of adding another exception for the use of electronic devices for medical needs.

Also testifying in favor of the bill was Rep. Shannon Zimmerman (R-River Falls), Wisconsin Association for Justice, Milwaukee Police Association, Wisconsin State Fire Chiefs Association, and Wisconsin Bicycle Federation. Also registered in favor of the bill are Wisconsin Chiefs of Police Association and Wisconsin EMS Association.

Throughout the hearing, lawmakers questioned the scope of the bill, asking, for example, whether the bill would apply to law enforcement, what would happen if a Bluetooth device stopped working mid-call, and if leaving apps open on your phone would count as “transmitting data.”

No groups testified against the bill, but Bob Fassbender testified on behalf of Wisconsin Civil Justice Council (WCJC) for information only. Fassbender agreed that the current law is too narrow to address the wide range of distractive driving while engaging electronic devices. But as drafted, according to Fassbender, the bill is overly broad and will create unintended and mostly unavoidable violations because too many non-exempt devices will be transmitting or accessing data while driving. Also, these violations will trigger the legal concept of negligence per se, making any defense an uphill battle at best.

Wisconsin Civil Justice Council Files Amicus Brief in Mayo Case

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Last week, the Wisconsin Civil Justice Council (WCJC) filed an amicus brief with the Supreme Court of Wisconsin in Ascaris Mayo v. Wis. Injured Patients and Families Compensation Fund. WCJC supports the patients’ compensation fund position on the validity of the $750,000 cap on noneconomic damages arising out of medical malpractice claims. The brief asked that the court grant the fund’s request for review.

In a July 5 opinion, the Wisconsin Court of Appeals, District 1 (Milwaukee County), found the statutory $750,000 cap unconstitutional. The court found the cap was “an unfair and illogical burden only on catastrophically injured patients, thus denying them equal protection of the law.”

The WCJC brief sets forth the parties’ interest in the case, focusing on the appropriate standard for courts considering reversal of legislative enactments. Since Ferdon v. Wis. Patient Comp. Fund, the courts have been unclear regarding the “rational basis” test as it relates to an equal protection claim. WCJC’s brief asks the Supreme Court to draw a clear line to make damages more predictable.

The case arose from a septic infection resulting in the amputation of the plaintiff’s limbs. The lower court did not find negligence, but instead rested liability on improper informed consent regarding diagnosis and treatment options. The jury awarded the plaintiff $15 million in noneconomic damages, such as pain and suffering, and $1.5 million to the plaintiff’s husband for loss of society and companionship. Unaffected is the reported $8.8 million award for economic damages, which has no statutory limitation.

Joining WCJC on the brief was the American Tort Reform Association and the National Federation of Independent Businesses.

State Files Opening Brief in SCOTUS Redistricting Case

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Last week, Attorney General Brad Schimel filed with the U.S. Supreme Court the opening brief in Gill v. Whitford, the legal challenge to Wisconsin Republicans’ redistricting map brought by Democratic voters against officials of the Wisconsin Elections Commission.

In the brief, Schimel argues that the Supreme Court should dismiss the district court decision because the maps the district court struck down comply with traditional redistricting principles and do not differ from the previous 2002 court-drawn map in terms of election outcomes.

The brief further argues that federal courts have no jurisdiction to adjudicate statewide political gerrymandering claims, and the plaintiffs lack standing to challenge the district maps on a statewide basis. Even if standing was established, the plaintiffs did not provide a “limited” and “precise” means for the courts to determine partisan gerrymandering, according to the defendants’ brief.

The Supreme Court announced on June 19 that it would review Gill v. Whitford. By 5-4 vote, the Supreme Court also granted Attorney General Brad Schimel’s request to stay the lower court’s order requiring a timely redrawing of the Assembly district map. The Supreme Court will hear oral arguments for the case on October 3, 2017.

Great Lakes Legal Foundation Files Amicus Brief in Tetra Tech Case

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This week, Great Lakes Legal Foundation (GLLF) filed an amicus brief with the Wisconsin Supreme Court in Tetra Tech Inc. v. Wisconsin Department of Revenue (DOR). The brief was filed on behalf of 11 Wisconsin associations, including Wisconsin Manufacturers and Commerce and Associated Builders and Contractors, Wisconsin Chapter.

The Supreme Court specifically requested parties brief the constitutionality of courts providing deference to agencies on questions of law. GLLF’s amicus brief argues that Wisconsin courts afford regulatory agencies too much deference to interpret statues that define agencies’ own power and reach. Under the Wisconsin and federal constitution, it is exclusively the duty of judges, not unelected agency officials, to say what the law is. When courts grant deference to an agency’s interpretation of the law, the predisposed bias of agencies poses unconstitutional, systematic disadvantage to the other party in the dispute.

In 2007, the Environmental Protection Agency (EPA) required several paper companies to remediate the environmental impact of harmful chemicals into the Fox River. The collective group of paper companies formed Fox River Remediation, which hired Tetra Tech to perform the remediation. Tetra Tech subsequently hired Stuyvesant Dredging, Inc. (SDI) as a subcontractor. DOR audited the entities and found that Tetra Tech owed sales tax on the portion of its sale for services to Fox River Remediation on SDI’s activities, and Fox River Remediation owed use tax on the purchase of remediation services from Tetra Tech on SDI’s activities. The entities filed petitions for redetermination with DOR, then with the Tax Appeals Commission. A Wisconsin circuit court, then appeals court upheld the commission’s ruling, giving great weight deference to DOR’s interpretation of tax statutes. The case is now being appealed again at the Wisconsin Supreme Court.

Appeals Court Tosses Medical Malpractice Caps for Noneconomic Damages

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In a July 5 opinion, the Wisconsin Court of Appeals, District 1 (Milwaukee County), found the statutory $750,000 cap on noneconomic damages arising out of medical malpractice claims was unconstitutional. The court found the cap was “an unfair and illogical burden only on catastrophically injured patients, thus denying them equal protection of the law.”

The case arose from a septic infection resulting in the amputation of the plaintiff’s limbs. The lower court did not find negligence, but instead rested liability on improper informed consent regarding diagnosis and treatment options. The jury awarded the plaintiff $15 million in noneconomic damages, such as pain and suffering, and $1.5 million to the plaintiff’s husband for loss of society and companionship.

The $750,000 cap was set in 2005 Wis. Act 183. Act 183 was in response to a Wisconsin Supreme Court case, Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund that found unconstitutional a $250,000 cap on medical malpractice noneconomic damages. Act 183 passed by a wide, bipartisan vote of 74-22 in the Assembly and 25-8 in the Senate. Democratic Gov. Jim Doyle signed the legislation into law.

The Wisconsin Hospital Association, Wisconsin Medical Society, and the American Medical Association filed an amicus brief in support of the existing $750,000 cap. In response to the decision, the Wisconsin Hospital Association issued a press release stating that the “loss of noneconomic damage cap will exacerbate future physician shortages” in Wisconsin.

Unaffected by the decision was the reported $8.8 million award for economic damages, such as medical costs and lost wages, which has no statutory limitation.

SCOTUS to Hear Wisconsin Redistricting Case

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On June 19, the U.S. Supreme Court announced it will review the legal challenge to the Republicans’ redistricting map. By 5-4 vote, the Supreme Court also granted Attorney General Brad Schimel’s request to stay the lower court’s order requiring a timely redrawing of the Assembly district map.

The redistricting case, Gill v. Whitford, was brought by Democratic voters against officials of the Wisconsin Elections Commission. Last November, a panel of two federal district court judges in the U.S. Court of Appeals held 2-1 in a 159-page decision that the state assembly boundaries, drawn by Republicans in 2011, constituted partisan gerrymandering that was “intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.” The court ordered the Wisconsin Legislature to timely enact a constitutional district plan for the Assembly districts or face having the court redraw the map.

The case is expected to have national implications, possibly setting a new standard for courts when determining whether a redistricting plan is constitutional if based on party affiliation of voters. The hearing on the case is expected to be scheduled for oral argument early in the term starting in October 2017.

Justice Gableman Will Not Seek Reelection

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Wisconsin Supreme Court Justice Michael Gableman announced last week that he will not seek reelection to the state’s highest court. His seat is up in April 2018.

Former Michael Best attorney Michael Screnock, now a sitting Sauk County Circuit Court judge, announced that he will run for the Gableman spot. Gov. Scott Walker appointed Screnock to the Sauk County bench in 2015. If he prevails, the conservatives will maintain a 5-2 majority.

It is not yet clear whether Justice Gableman will stay on for the rest of his term or resign early to allow Walker an opportunity to appoint his third justice on the court. Any appointee by Walker would have to run in the first open election, which would be April 2018 for the open Gableman seat.

Also running are Madison attorney Tim Burns and Milwaukee Circuit Court Judge Rebecca Dallet, with Burns running as an unabashed progressive.

JFC Meets May 31, Postpones This Week’s Meetings

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This week, the budget process came to halt, as the Joint Finance Committee (JFC) remains at an impasse on education, transportation and property taxes.  After the long Memorial Day weekend, JFC met only once last week on Wednesday, May 31. As the Assembly and Senate tried to smooth over their differences on the remaining items, JFC cancelled this week’s Tuesday and Thursday meetings.

Assembly Republicans released an education plan on Tuesday that cuts property taxes, but not as much as Gov. Scott Walker’s budget recommended. Walker has threatened to veto a budget that does not cut property taxes below the 2014 level, and Sen. Majority Leader Scott Fitzgerald (R-Juneau) said the Senate would stick to Walker’s plan. The Assembly’s transportation plan has also yet to gain traction in the Senate. Fitzgerald hinted recently that the Senate could take up their own budget, an unprecedented move in the history of the Joint Finance Committee. Lawmakers have just three weeks left to approve a budget before the June 30 deadline.

At the time of this writing, the next JFC meeting to take up the budget has not been scheduled. However, JFC will be in next Thursday June 15, to act on the state’s pending contracts to self-insure state employees.

With no JFC action to report on from this week, below are highlights from JFC’s May 31 executive session:

Department of Corrections (DOC)– Parole Commission: Gov. Walker recommended eliminating the parole commission and moving its functions to one Director of Parole position within DOC. Instead, Republicans passed a motion 12-4 that would not eliminate the commission, as Gov. Walker suggested, but would eliminate three positions on the commission that have been vacant all year, and retain a total of four members and two staff on the commission. Democrats on the committee fought to keep the eight-member commission as is, but their motion was rejected 12-4.

Supreme Court: Gov. Walker proposed creating a new process to determine judicial compensation. Under Walker’s proposed process, the Director of State Courts would submit salary recommendations to the Joint Committee on Employment Relations (JCOER) for approval. JFC did not accept the governor’s recommendation to create a new process, but approved a motion to maintain current law that judicial compensation be determined under the state employee compensation plan. Under the approved motion, judges and justices would also get a two percent raise in each year of the biennium. The motion also gives the administrator of the Division of Personnel Management the authority to establish even higher raises after consulting with the Chief Justice and obtaining the approval of JCOER.

Also under the Supreme Court, Democrats pushed to incorporate a former petition and current bill that would require justices and judges to recuse themselves in cases where the litigants have donated significant campaign contributions. However, the motion failed 12-4.

District Attorneys: JFC also approved a pay raise for district attorneys and public defenders at an increased rate from Walker’s plan. The committee unanimously voted to establish a state prosecutor board and statutory state prosecutor’s office. The motion’s authors say the board will give district attorneys representation in the capitol. The board would be made up of district attorneys, prosecutors and the attorney general. Its duties would include providing best practices for prosecuting cases, continuing education opportunities, submitting budget requests and providing recommendations on bills and administrative rules.

Tourism: JFC approved Gov. Walker’s standard budget adjustments for the Department of Tourism. Additionally, JFC approved Walker’s recommendation to transfer the Department of Tourism’s financial manager to the Department of Administration, moving $50,000 annually from salary and benefits to supplies and services for the department.

JFC also passed three other motions in Tourism. The first motion provided the department additional onetime funding of $7,500 for geographical signing in Pittsville. The second motion provided the department, on a one-time basis, $75,000 to improve structures and property in Vernon County that are used to facilitate a national or international ski jumping competition. The last motion provided the Wisconsin Arts Board with a one-time $59,500 to match federal grants received from the National Endowment for the Arts.

Department of Natural Resources: JFC addressed several of Gov. Walker’s divisive proposals under the Department of Natural Resources (DNR) at the May 31 meeting. Walker had proposed eliminating DNR’s Wisconsin Natural Resources magazine and move its content online. Democrats pushed to leave the magazine as is, but the committee ultimately voted to keep the magazine, but reduce its publication from six to four times per year and require more online content. Second to education funding, the elimination of the DNR magazine was one of the top items, Wisconsin residents testified against in the public hearings in March.

JFC also adopted Gov. Walker’s proposal to increase daily park fees by up to $5, but kept annual admission fee rates intact.

Gov. Walker had also proposed sunsetting the state forestry mill property tax as part of his promise to eliminate the state property tax altogether. JFC held over voting on this provision and instead will take it up later under property taxes. However, JFC co-chair Sen. Alberta Darling (R-River Hills) indicated that the GOP majority would approve it.

Bills of Note: Constitutional Convention

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The Assembly is set to vote next week on a resolution that calls for a constitutional convention. SJR 18/AJR 21, authored by Sen. Chris Kapenga (R-Delafield) and Rep. Dan Knodl (R-Germantown), proposes that Wisconsin apply to Congress for the calling of a constitutional convention to create an amendment requiring the federal government to operate under a balanced budget. Under the amended version of the bill, the state Senate Chief Clerk and Assembly Chief Clerk would forward the resolution to the U.S. Senate President and the House Speaker. The resolution would be valid until a convention convenes or the Wisconsin legislature rescinds the resolution.

The Senate Committee on Financial Services, Constitution and Federalism and the Assembly Committee on Federalism and Interstate Relations held a joint public hearing on the resolution on March 28. The committees also heard testimony on a set of related bills that would codify the process of choosing delegates and place controls on their actions while serving, specifically limiting them to the single purpose of the balanced budget amendment.

Those testifying in favor of the bill, including the National Federation of Independent Business, the Heartland Institute, and Wisconsin Grandsons of Liberty, highlighted the existing $20 trillion in federal debt. They argued that the United States needs a balanced budget to provide confidence and certainty for business, the economy and the long-term viability of government programs. Wisconsin Manufacturers and Commerce also registered in favor of the legislation.

Those speaking against the bill, including the John Birch Society, the League of Women Voters, ACLU, and the Wisconsin Democracy Campaign, testified that passing this bill would lead to a runaway convention in which states could change and rewrite any part of the Constitution. The uncertainty of convention rules could jeopardize citizens’ rights, according to the bill’s critics. Opponents of the bills also argued that a balanced budget amendment would prevent the government from offering aid in times of economic downturn or other national emergencies. A mandated balanced federal budget could force cuts to social programs like transportation, schools and healthcare, they said.

After the hearing, the Senate committee in executive session on April 30 passed SJR 18, 3-2. The Assembly committee passed AJR 21 on May 31, 5-2. The full Assembly will vote on the bill in its June 14 floor session.

Article V of the Constitution says that a convention of states to amend the constitution may be called by a two-thirds majority, or 34 states. WI would be the 30th of 34 states needed for a convention if the resolution passes both the Assembly and Senate. An amendment to the constitution would have to be ratified by 38 states.