Author: Hamilton

Wisconsin Supreme Court Rejects Recusal Petition

Posted on by Hamilton

Last week, the Wisconsin Supreme Court rejected a petition to change its recusal rules. The proposal, submitted in January by 54 retired judges and justices, would have required judges and justices to recuse themselves if they received donations past a certain contribution threshold from litigants or attorneys in a case. Under the petition, the threshold would be $1,000 or more donated to circuit court judges, $2,500 to appeals judges and $10,000 to Supreme Court judges.

The Court rejected the petition 5-2, with only justices Ann Walsh Bradley and Shirley Abrahamson voting for the restrictions. Bradley and Abrahamson argued that recusal rules are necessary to ensure that judges act impartially.

Justices Bradley and Abrahamson had also submitted motions to hold a public hearing on the petition, but conservatives on the Court voted down the motion. More than 75 people and groups across Wisconsin submitted comments both in favor of and against the petition.

The justices who rejected the petition said that judges should be able to decide for themselves whether they should step off a case. A letter from 11 retired judges also affirmed that judicial campaign contributions are an exercise of free speech rights, and recusal rules would lead to gamesmanship and deter voters from participating in future elections.

The Court voted on current rules regarding campaign contributions in 2010, establishing in a 4-3 vote that election spending cannot force a judge off a case.

Josh Kaul to Challenge AG Brad Schimel in November 2018

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Josh Kaul, attorney in Madison and son of former state Attorney General Peg Lautenschlager, announced on Monday, April 10 that he will challenge Brad Schimel for his position as Wisconsin Attorney General. The election will be held on November 6, 2018. Lautenschlager resigned from her position with the Wisconsin Ethics Commission on Friday, April 7 before Kaul’s campaign announcement. Kaul is the first Democrat to announce plans to run against current Republican incumbent Schimel.

Josh Kaul grew up in Oshkosh and Fond du Lac, WI, going on to attend Stanford Law School. Kaul worked as a law clerk at the U.S. Court of Appeals for the First Circuit in Boston, MA before becoming an associate in Washington, D.C. He later became a federal prosecutor in Baltimore, MA before joining Perkins Coie LLP in Madison, WI. His practice at Perkins Coie included representing former Secretary of State Hillary Clinton during her 2016 presidential campaign.

Current Wisconsin Attorney General Brad Schimel announced his plans to seek re-election for another four-year term in December 2017. A former Waukesha County district attorney, Schimel is serving in his first term as state Attorney General after defeating Democrat Susan Happ in 2014. Schimel has been very active in his first two plus years, frequently defending legislation passed by the GOP legislative majority.

In his statement announcing his campaign, Kaul stated, “We deserve an attorney general who is focused on protecting Wisconsin families, not on partisan politics.” The Republican Party of Wisconsin defended Schimel, releasing a statement that said, “Attorney General Brad Schimel has fought for Wisconsin families by improving public safety, upholding the rule of law, and stopping federal overreach from Washington.”

 

JFC Holds Agency Briefings

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The Joint Finance Committee (JFC) met for three days this week to hear testimony from state agencies on the governor’s proposed budget. Legislators posed questions to the department secretaries on the implementation of budget proposals and asked other questions pertaining to agency services. Both Republicans and Democrats on JFC posed tough questions to agency heads on the budget’s biggest proposals, including self-insurance, the opioid epidemic and transportation funding. Republicans re-ignited their contentious debate with Gov. Scott Walker about how to address the transportation shortfall. Democrats asked pointed questions about DOJ’s testing of sexual assault kits, DNR’s regulation for polluters, DHS’s Medicaid funding and more. See below for coverage on each day’s JFC briefings.

Day 1: DOA, ETF, Elections Commission, Supreme Court, DOC, DSPS

Day 2: DOJ, DVA, DHS, DCF, DOR, WEDC, DOT

Day 3: PSC, DNR, WI Tech College Systems, UW-System, DPI, Historical Society, DWD, LIRC

Republicans to Hire Outside Counsel to Defend Redistricting Map

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On Feb. 2, the leadership committees in both the Wisconsin Senate and Assembly approved the hiring of an outside law firm to file a friend-of-the-court brief in defense of their redistricting map.

The redistricting plan, enacted as 2011 Wis. Act 43, was struck down by the U.S. District Court for the Western District of Wisconsin. In their 159-page opinion, the court found that:

Act 43 was intended to burden the representational rights of Democratic voters throughout the decennial period by impeding their ability to translate their votes into legislative seats. Moreover, as demonstrated by the results of the 2012 and 2014 elections, among other evidence, we conclude that Act 43 has had its intended effect. Finally, we find that the discriminatory effect is not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest. Consequently, Act 43 constitutes an unconstitutional political gerrymander.

Attorney General Brad Schimel will represent the state Election Commission in defense of the redistricting map. “In his news release after the court decision, Schimel noted that the “2-1 decision does not affect the results of [the November 2016] election or any prior election and legislative district boundaries remain unchanged until the court rules on any remedy.”

President Trump Nominates Judge Neil Gorsuch to Supreme Court

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Neil Gorsuch, a 49-year-old appellate judge in Colorado, was appointed to the Supreme Court by President Trump on Tuesday. Born in Denver, Colorado, Judge Gorsuch attended Georgetown Preparatory School in Washington, D.C. while his mother led the Environmental Protection Agency under President Reagan. He completed his undergraduate degree at Columbia University and went on to graduate in the same class as President Obama at Harvard Law School in 1991. He additionally received his doctorate at Oxford University, where he was a Marshall Scholar.

In the legal realm, Judge Gorsuch has clerked for Judge David B. Sentelle of the D.C. Circuit Court of Appeals, Supreme Court Justice Byron White, and current Supreme Court Justice Anthony Kennedy.  He practiced law in Washington, D.C. at a large firm for 10 years and additionally served as principal assistant to the deputy attorney general in the Department of Justice before being appointed to the 10th Circuit Court of Appeals in Colorado by President George W. Bush in 2006. In announcing Judge Gorsuch as his Supreme Court nominee on Tuesday, President Trump sought to appoint a legal conservative to fill the late Justice Antonin Scalia’s seat. If appointed, Judge Gorsuch will serve as the 113th justice of the Supreme Court of the United States.

Leak of John Doe Documents Being Looked at by AG

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In what appears to be a targeted leak aimed at Gov. Walker, the Guardian US published sealed Wisconsin court documents from the controversial John Doe investigation. It has been reported that over six million records were seized in the politically driven investigation. The leak involved 1,350 records.

Assembly Speaker Robin Vos and other GOP leaders requested Attorney General Brad Schimel appoint a special prosecutor to “investigate this apparent violation of Supreme Court order and state law.” TheSeptember 15 letter notes that “should this potential crime go unprosecuted it runs the risk of undermining the integrity of our courts and judicial system.”

In an interview posted on September 23, Schimel noted that DOJ does not have the power to appoint a special prosecutor on its own. That authority resides in the courts, particularly the judge overseeing the John Doe.

In a related development, the Wisconsin Democracy Campaign filed a formal complaint with the IRSalleging that Wisconsin Club for Growth violated IRS regulations. The complaint alleges that the group engaged in deceptive and improper fundraising practices and that engaging in political campaigns was its “primary activity” that contravened the group’s tax-exempt status.

AG Schimel Files Complaint Against New DOL Overtime Rule

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On Sept. 20, Wisconsin Attorney General Brad Schimel joined a bipartisan coalition of states in filing a federal complaint against the U.S. Department of Labor’s new overtime rule. The complaint cites federal overreach by DOL and asks the court to prevent implementation of the rule before it is scheduled to take effect on Dec. 1.

The rule, released in late May, would double the salary threshold for “white collar” workers who are exempt from overtime pay from $23,660 to $47,476. According to the rule, the new threshold will automatically increase every three years. DOL estimates the threshold will be $51,168 in 2020. Once implemented, the changes would impact 4.2 million salaried workers.

Business groups say the new rule will force millions of salaried professionals to be reclassified as hourly wage workers. They argue that small businesses, nonprofits, and public sector employers will be especially hurt. The U.S Department of Labor estimates businesses will end up paying workers an additional $1.3 billion a year.

In its fact sheet explaining the rule, DOL provides businesses a “choice” under the new rule:

  1. Increase their employees’ salaries to the $47,476 threshold.
  2. Pay workers the time-and-a-half overtime premium for every hour beyond 40 per week.
  3. Limit workers to a 40-hour work week.

Some groups assert that market considerations over time will prove the paycheck benefits an illusion. To curb costs, some businesses will simply forbid employees from working over 40 hours. They may also have to cut back other expenses such as non-cash benefits or suppress the base pay itself.

Wisconsin joins 20 other states in this complaint, which was filed in Texas on Tuesday, including Alabama, Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, New Mexico, Ohio, Oklahoma, South Carolina, Texas and Utah.

Department of Justice Submits Budget Request

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Attorney General Brad Schimel submitted the Department of Justice (DOJ) 2017-19 budget request to Governor Walker on September 15, 2016. Including all funding sources, DOJ’s request is a 6.2 percent increase over the base fiscal year (2016-17) doubled. This increase amounts to $6.6 million in new general purpose revenue (GPR) over the biennium.

The largest cost drivers for the additional funding request are due to legislation that passed in the 2015-2016 session. 2015 Wisconsin Act 388 provided a funding increase to county grants for the Treatment Alternative and Diversion (TAD) program. The TAD program provides options for offenders for voluntary substance abuse treatment, case management, and other services, instead of incarceration. DOJ’s budget request includes $2 million in each year of the biennium to expand the TAD program.

DOJ’s budget request includes $1.5 million over the biennium for the cost-to-continue of overtime and training for local and state Internet Crimes Against Children (ICAC) taskforces. The additional investment for ICAC taskforces and staff is a result of 2015 Wisconsin Act 369, otherwise known as Alicia’s Law.

In addition to additional funding, DOJ’s request establishes an appropriation for new officer training and officer recertification training reimbursement to local law enforcement agencies. DOJ states that this change will ensure the training reimbursements are fully funded going forward.

Outside of his agency’s budget, Attorney General Brad Schimel asks in his budget letter that the governor address the staffing levels and compensation for District Attorneys. The District Attorneys submitted a separate budget request that included funding for a pay progression for assistant attorney generals and adds 96.3 positions across the state.

Supreme Court Justice Annette Ziegler Announces “Likely” Run for Second Term

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Wisconsin Supreme Court Justice Annette Ziegler announced she will “likely” run for re-election in April 2017. The conservative justice already claims endorsements of 48 sheriffs and 30 district attorneys.

Among others, her steering committee will include former Gov. Tommy Thompson, former Lt. Gov. Margaret Farrow, and former Wisconsin Supreme Court Justice John Wilcox. Her Sept. 20 preannouncement states that her formal announcement will be made later this year. She has over $200,000 cash in hand in her campaign account.

With Gov. Walker’s July 22 appointment of attorney Daniel Kelly, the Wisconsin Supreme Court has a 5-2 conservative majority. Justice Kelly is serving out the remaining term of former Justice David Prosser who resigned earlier this year. Kelly will face re-election in 2020. Conservative Justice Michael Gableman is next up after Ziegler, with his term expiring in 2018.

Former Chief Justice Shirley Abrahamson, initially appointed in 1976 by Gov. Pat Lucy, has her latest 10-year term ending in 2019.

Suit Challenging Wisconsin “Minimum Markup Law” Filed

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On Tuesday, August 23, 2016, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in Vilas County Circuit Court on behalf of plaintiffs Krist Oil and Robert Lotto challenging the constitutionality and legality of s. 100.30 of the Wisconsin statutes, Wisconsin’s Minimum Markup Law. Krist Oil is an independent, family-owned Michigan corporation having its principal place of business in Iron River, Michigan. Mr. Lotto is a Wisconsin citizen who regularly purchases gasoline, including gasoline from Krist Oil.

The lawsuit alleges the state’s Minimum Markup Law

(1) violates the Wisconsin Constitution’s Due Process Clause, which states “[a]ll people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness,” because the law “arbitrarily and irrationally prevents Plaintiff Krist Oil from charging appropriate and non-predatory prices in connection with its business and from freely operating an otherwise lawful business in a manner that is in its own best interest and the best interest of its customers” and that “Wisconsin has no compelling, substantial, or legitimate government interest in regulating minimum prices, even prices below some measure of costs, except where such prices could result in an actual and persistent adverse effect on competition.”

(2) violates the Wisconsin Constitution’s guarantee of equal protection of the law because the law “creates irrational and arbitrary classifications. Businesses that sell gasoline must mark that product up 9.18%. Businesses that sell alcohol or tobacco must mark those products up 6%. Businesses that sell any other product only have to sell their products above “cost.” There is no rational reason for forcing retailers to sell certain products at a specified percentage above “cost” when other products do not have the same requirements. There is no reasonable basis for those classifications and they serve no legitimate government purpose.”

Matt Hauser, on behalf of the Wisconsin Petroleum Marketers & Convenience Store Association(WPMCA), expressed confidence the law will be upheld and said the law “ensures that Wisconsin’s independent petroleum retailers can continue to provide their customers with a competitively priced product.”

A spokesman for Wisconsin Attorney General Brad Schimel said the Department of Justice plans to defend the state in the lawsuit.

Under s. 100.30 of the Wisconsin statutes, sales of merchandise below cost are generally prohibited. In addition, alcohol or tobacco products may not be sold less than cost, with the definition of cost including, as paraphrased by the Department of Agriculture, Trade and Consumer protection, “a presumptive 3% markup by wholesalers and presumptive 6% markup by retailers.”  Sales of motor vehicles fuels, again as paraphrased by the Department of Agriculture, Trade and Consumer protection, “the definition of ‘cost’ relies on the ‘average posted terminal price’ and includes a 9.18% markup over this amount.”

 

Related Items:

WILL Video Overview of Lawsuit

WPMCA Press Release