Author: Hamilton

State Judiciary Budget Summary

Posted on by Hamilton

Governor Walker submitted his 2015-2017 biennial budget to the legislature on February 3. The governor’s proposed budget for the Judiciary (the State Supreme Court, the court of appeals, and the circuit courts) includes several initiatives intended to generate program flexibility and efficiencies through the creation of two block grants, Supreme Court Block Grant and Circuit Court Block Grant. The governor has also proposed the consolidation and elimination of several programs. This includes a proposal to eliminate the Judicial Council, the consolidation of appropriations for the Judicial Commission under the State Supreme Court, the creation of a Judicial Compensation Commission, and the modification of surcharge exemptions and court interpreter fees.

The governor’s recommended budget allocation for the Judiciary is $138 million in Fiscal Year (FY) 2016 and $138 million in FY 2017 for all funds (General Purpose Revenue – GPR, Program Revenue – PR, Segregated Revenue – SEG). This is a 0.27 percent increase from the adjusted base to the recommended FY 2016 budget and a 0.05 percent increase from FY 2016 to 2017. Over the biennium, the governor recommends a $76,400 increase to the judiciary’s budget. A breakdown of those totals is as follows:

  • The governor’s recommended budget for the State Supreme Court is $29.76 million for FY 2016 and $29.81 million for FY 2017. This is a 5.6 percent decrease from the adjusted base to the recommended FY 2016 budget and a 0.2 percent increase from FY 2016 to 2017.
  • The governor’s recommended budget for the court of appeals is $10.67 million for FY 2016 and $10.70 million for FY 2017. This is a 2.6 percent increase from the adjusted base to the recommended FY 2016 budget and a 0.3 percent increase from FY 2016 to 2017.
  • The governor’s recommended budget for the circuit courts is $97.70 million for FY 2016 and 2017. This is a 1.9 percent increase from the adjusted base to the recommended FY 2016 and 2017 budgets.

Other recommended budget initiatives in the governor’s judiciary budget include:

Supreme Court Block Grant

The governor recommends consolidating GPR appropriations for the director of state courts and the state law library under the Director of State Courts and Law Library general program operations appropriation, funded at $10.3 million GPR each fiscal year. The governor recommends these appropriations be changed from annual to biennial. However, the proposed consolidation of these appropriations does not include a decrease in revenue to these programs. Furthermore, the governor recommends transferring the appropriation for library collections and services to the Director of State Courts and Law Library general program operations appropriation. The block grant system is designed to give Supreme Court justices more flexibility to determine how to spend its appropriation.

Circuit Court Block Grant

The governor recommends the creation of a new appropriation for circuit courts in the form of a block grant. Individual appropriations for court interpreter fees, circuit court support payments, and guardian ad litem costs will be transferred to the block grant. This block grant will be funded at $48 million GPR annually. Furthermore, all funding and position authority (527.0 FTE) from the circuit courts sum sufficient appropriation is recommended to be transferred to the block grant. In addition, all statutory language associated with these costs is recommended to be deleted.

Under the governor’s proposed budget, he suggests the repeal of appropriations for statutory court interpreter fees, circuit court support payments, guardian ad litem costs, and violent crime court costs and programs.

The intent of the block grant program is to provide the circuit courts with greater flexibility to determine how their appropriations are spent. However, there is an error in the governor’s current budget recommendation that has not included full funding increases and related costs provided under a “standard budget adjustment” for 278 court reporter positions. The governor has stated that this was an oversight and lawmakers will fix this in the final budget.

Elimination of Surcharge Exemptions

Currently there are various exemptions from the civil clerk fee and justice information fee for failure to wear a seatbelt, smoking in a public place, failure to carry proof of motor vehicle insurance, and failure to carry a handicap permit. The governor recommends removing these fee exemptions. Projected revenue increases from the proposed changes are $348,800 PR and $871,900 GPR.

The governor also recommends adding “intoxicated operation of an aircraft” to the list of offense subject to the blood withdrawal surcharge.

Judicial Commission

The Judicial Commission was created by the state legislature in 1978 in response to the state constitution being amended. The Commission is currently independent of the State Supreme Court. Its function is to investigate possible misconduct and disability of judges and determine whether there is probable cause of either. If the Commission finds probable cause then it initiates and prosecutes a proceeding against the judge in the Wisconsin Supreme Court (unless a  State Supreme Court justice is being prosecuted at which point a panel of three court of appeals judges will sit in judgment). The Supreme Court then determine if sanctions are needed and what, if any, sanctions are appropriate. The governor proposes to move the appropriations for administering the Judicial Compensation Commission to the Supreme Court. The governor’s proposal does not change the composition or function of the commission. However, some (such as Chief Justice Shirley Abrahamson) are concerned that if the Supreme Court administers the appropriations of the Commission, then the Commission will seem dependent on, and thus biased towards, the Supreme Court. The proposal includes the creation of 2.0 additional FTE positions and the expenditure of $603,200 GPR over the biennium.

Judicial Council

The governor proposes the elimination of the Judicial Council and its appropriations. The Judicial Council advises the Supreme Court, legislature, and governor on potential changes to the rules of pleading, practice, and procedure that would simplify procedure and promote a speedy determination of litigation on its merits. The Judicial Council also recommends changes to the business of the courts to the legislature.

Chief Justice Salary

The governor proposes eliminating the state statute that provides that the chief justice of the  State Supreme Court must receive a different salary than the associate justices. The governor has stated the rationale behind this change is to allow all justices’ salaries to be raised.

Judicial Salaries & Judicial Compensation Commission

The governor proposes that the director of the Office of State Employment Relations can no longer recommend salary changes of Supreme Court justices, court of appeals judges, and circuit court judges to the Joint Committee on Employment Relations (JCER). Instead, the governor proposes the creation of a Judicial Compensation Commission. The Commission will review judicial salaries biennially and make recommendations annually via a written report on the status of those salaries to JCER and the governor’s office. The Director of State Courts will provide staff and support services to the judicial compensation commission. The chief justice’s salary is currently $155,403. A current associate justice salary is $147,403.

Division of Hearings and Appeals

The governor proposes repealing the requirement that the Division of Hearings and Appeals (DHA) must appoint hearing examiners to make findings and orders in contested cases of crime victim compensation and contested cases involving health care providers. Instead, the governor proposes that the Department of Justice (DOJ) be able to issue initial decisions in these cases. The DOJ would have the ability to contract out to the DHA to provide these services.

CCAP Revenue Decrease

The governor proposes a decrease in the CCAP allocation by $3.3 million annually from base funding of $10 million PR annually to $6.6 million PR annually to reflect recent expenditures in the 2013-15 biennium. The state spent $7.5 million PR on CCAP in the 2013-14 fiscal year.

Uniform Chart of Accounts

The governor proposes the elimination of the current statutory provision authorizing the Director of State Courts to create a uniform chart of accounts that each circuit court is required to use to record all financial transactions relating to the operation of the circuit. The director could the audit financial information provided by the circuit courts. The governor also proposes the deletion of the requirement that the director of state courts annually report the financial data from the uniform chart to the governor and the legislature.

Court Interpreters Funding

The governor proposes using revenues from penalty surcharges instead of justice information surcharges in order to fund courtroom interpreters.

F.A.C.T. Update – Transparency in Asbestos Trust

Posted on by Hamilton

The U.S. Government Accountability Office has determined the value of all assets in asbestos-related bankruptcy trusts is $36 billion. Over five decades, asbestos litigation is the longest running mass tort litigation area in the history of the United States. With over 730,000 lawsuits filed and $50 billion paid out in compensation over that time period it is also among the most expensive. However, 730,000 lawsuits could be just the beginning as some experts have estimated that there could be 2.6 million more lawsuits over the next three decades with a cumulative $270 billion in liabilities. Congress has perennially tried to pass legislation meant to keep asbestos-related trusts solvent and reduce litigation.

The current piece of legislation before Congress is the Furthering Asbestos Claim Transparency (FACT Act) of 2015. The bill seeks to amend title 11 of the U.S. Bankruptcy Code to require asbestos-settlement trusts to release information on victims seeking compensation due to asbestos-related injuries in quarterly reports. This disclosure is seen by many as a remedy to the major problem of fraudulent, inflated, or duplicative checks that find their way to plaintiffs’ mail boxes around the country. This problem is largely due to the lack of a mechanism in the Bankruptcy Reform Act of 1994 for asbestos trusts to share claims data with each other and the courts in order to stop attorneys and claimants from using this lack of transparency to receive duplicative benefits.

The bill is currently in the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The subcommittee held a hearing in mid-February that highlighted the fraud this bill seeks to remedy. Specifically, much of the testimony was focused on In Re Garlock Sealing Technologies. In this case the asbestos plaintiffs’ attorneys withheld evidence of exposure to asbestos containing materials manufactured by companies that have bankruptcy asbestos trusts in order to maximize plaintiffs’ (and counsel’s) recoveries by increasing Garlock’s settlement costsHowever, Garlock proved the settlements were inflated and this eventually led the company to file four racketeering lawsuits against the plaintiff law firms. No other hearings are schedule at this time.

Further Reading: Law prof’s Garlock testimony details asbestos lawyers’ change in strategy: Legal Newsline Legal Journal, February 23, 2015.

Wisconsin Supreme Court to Decide How to Apply the Substantial Evidence Test

Posted on by Hamilton

On Thursday, January 8, 2015 the Wisconsin Supreme Court heard oral arguments on the case Oneida Seventh Generation Corp. v. City of Green Bay (2013AP591). The supreme court will decide whether the court of appeals properly applied the substantial evidence test, which can effect when a conditional use permit can be revoked by a municipality.

Background

The Green Bay City Council granted Oneida Seventh Generation Corp. a conditional use permit to allow it to operate a solid waste-to-energy facility. The facility also received the proper permits from the Wisconsin Department of Natural Resources and the U.S. Department of Energy. However after public opposition to the project grew the city council requested that the city plan commission determine whether they were misled about the potential for harmful emissions from the facility during Oneida Seventh Generation Corp’s application for the permit. The plan commission unanimously stated they were not misled and recommended that the permit not be revoked. The city did not follow the commission’s recommendation and revoked the permit on the grounds that the corporation made untruthful statements to the city about the potential for harmful pollutants to be emitted from the plant.

The trial court upheld the city’s decision to revoke the permit. The Court of Appeals, Dist. III reversed the trial court stating that the city’s revocation of the permit was arbitrary because it did not adequately explain its justification for revocation. The court applied the substantial evidence test in this analysis. The substantial evidence test requires the court to determine whether the city council’s judgment (in this case the revocation of the permit) was supported by substantial evidence in the record before them. The court cannot substitute its own judgment for the city’s judgment.

The City of Green Bay argues that when the court of appeals analyzed whether the city rightfully revoked the permit under the substantial evidence test the court substituted its own judgment of the facts for the city council’s judgment of the facts.

The Oneida Seventh Generation Corp. argued that they outlined their development in extensive detail and that the city knew what type of facility was being proposed. They further argue that the city has not presented sufficient evidence that the Oneida attempted to mislead city officials. Therefore the revocation of the permit was unwarranted. If a municipality is able to revoke permits over a year after they were granted then it will have a chilling effect on real estate investment.

The Wisconsin Realtors Association filed an amicus brief with the state supreme court and argued that if Green Bay prevails that it will lead to uncertainty in property values and real estate development because property owners would not be able to rely and act upon a locality’s granting of a conditional use permit if the locality can revoke it at their discretion.

A decision in this case is expected by the end of July 2015.

Supreme Court to Decide on PSC Wind Turbine Siting Rule

Posted on by Hamilton

On Thursday, February 5, 2015, the Wisconsin Supreme Court heard oral arguments on the case Wisconsin Realtors Ass’n v. PSC (2013AP1407).  The Court will decide whether the PSC followed state statute when promulgating the PSC 128, relating to wind turbine siting restrictions.

Background

The Legislature passed Wis. Stat. §196.378(4g)(b) which authorized the PSC to promulgate rules that limited the restrictions political subdivisions may impose on the installation of wind energy systems (wind turbines). Included in this statute was a requirement for the PSC to promulgate rules that create setback requirements (how far a wind turbine must be placed from a residence) that provide reasonable protection from health effects associated with wind energy systems. The PSC promulgated Wis. Admin. Code Ch. PSC 128, which concluded that 1,250 feet as a minimum setback between non-participating residences and wind energy systems.

Wis. Stat. §227.115 requires that an agency promulgating a rule that directly or substantially affects the development, construction, cost, or availability of housing in Wisconsin must obtain a housing impact report and include a copy of the report with the proposed rule when it is given to the legislature. The PSC did not have this report prepared or submitted to the Legislature when they promulgated PSC 128.

The Court of Appeals, Dist. III found that the PSC must make the initial determination whether a housing impact report is required. The PSC reasonably concluded that wind energy systems did not directly or substantially affect housing and therefore a housing impact report was not required.

The Wisconsin Realtors Association argues that the PSC usurped the Legislature’s power when it violated Wis. Stat. §227.115 by promulgated PSC 128 without sending a housing impact report to the Legislature with the proposed rule. Because PSC 128 was promulgated without following §227.115 the rule is invalid.

The PSC argues that there was not a direct or substantial effect on development, construction, cost, or availability of housing and therefore they did not have to comply with Wis. Stat. §227.115. Furthermore they argue that they receive the presumption under Wis. Stat. §227.20(3) (a) that their rule was duly promulgated the WRA has not rebutted the presumption. Therefore, the PSC says the court of appeals ruling should be affirmed.

A decision in this case is expected by the end of July 2015.

Wisconsin Supreme Court to Determine Whether the Discovery Rule Applies to Third Parties

Posted on by Hamilton

On Wednesday, February 4, 2015, the Wisconsin Supreme Court heard oral arguments on the case Christ v. Exxon Mobile Corp. (2012AP1493). The Court will decide whether the discovery rule will apply to third parties in wrongful death and survival actions.

Background
This case contains wrongful death and survival actions involving nine former employees of Uniroyal manufacturing in Eau Claire, Wisconsin. The lawsuit was filed against Exxon Mobile Corporation because it allegedly distributed benzene-containing petroleum products to Uniroyal, which contributed to the decedents’ deaths.

The plaintiffs are the survivors (family members) of the decedents who died from the effects of alleged benzene exposure. The survivors are represented by the named plaintiff Christ. The plaintiffs filed suit between four and thirteen years after the deaths of the decedents. Wisconsin Statute §893.54(1)-(2) states that actions to recover damages for injury to a person or to recover damages for wrongful death must be commenced within three years after the injury. The discovery rule pauses this statute of limitations until the person injured knows or should reasonably know they are injured.

The Court of Appeals, Dist. III held that the discovery rule should be applied to Christ of the decedents, the plaintiffs and Exxon Mobile appealed.

Exxon Mobile argued before the Wisconsin Supreme Court that the discovery rule was applied by the trial court to the decedents and because their injuries were discovered when they died, that the statute of limitations had run out and barred the plaintiff’s case.

Christ argues that while the injured person is still alive, only their knowledge of if they have been injured or if they reasonably should know that they are injured is relevant. However, they argue, that changes when the injured person dies. Once the injured person dies, whether the family members (survivors) know or reasonably should know that the deceased was injured becomes relevant to determining when the statute of limitations expires. Therefore, in this case the clock measuring whether the statute of limitations has run did not begin its countdown until the plaintiffs knew the decedents died from injuries related to their alleged benzene exposure.

A decision in this case is expected by the end of July 2015.

Final Disposition of 2013-2014 Legislation

Posted on by Hamilton

Assembly Bills

Links Summary/Status

AB 19

Jacque

History

Torts and Personal Injury Trusts

Summary: Provides transparency and prevents fraud in lawsuits involving personal injury trusts by creating certain discovery requirements during litigation.

Status: Introduced Feb. 15, 2013; Referred to the committee on Judiciary; Public hearing held Apr. 4; Passage as amended recommended (6-2) May 1; Passed the Assembly (58-39) May 8; Referred to Senate committee on Judiciary and Labor; Concurrence recommended (3-2) Oct. 10; Senate concurrence Mar. 12, 2014. Senate Substitute Amendment 1 concurred in, Ayes 55, Noes 38, Paired 2 Mar. 20. Enrolled, Mar. 26; Signed by the Governor as 2013 Wis. Act 154 on March 27, 2014.

AB 27

Kuglitsch

History

Contingent Fees

Summary: Prohibits a state agency from contracting to provide legal services for the state on a contingent fee basis unless the governor makes a written determination that entering into such a contract is cost-effective and in the public interest.

Status: Introduced Feb. 18, 2013; Referred to the committee on Judiciary. Passage as amended recommended (5-3) April 15; Passed the Assembly (60-36) May 8; Referred to Senate committee on Judiciary and Labor; Concurrence recommended (4-1) Oct. 2; Passed the Senate (23-10) Oct. 8; Signed by the Governor as 2013 Wis. Act 105 on Dec. 13, 2013.

AB 29

Jacque

History

Collateral Source

Summary: Allows juries in personal injury cases to see all the evidence when determining the amount owed to compensate the plaintiff for his or her medical expenses..

Status: Introduced Feb. 18, 2013; Referred to the committee on Judiciary. Public hearing held Apr. 11; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 120

Severson

History

Inadmissibility of Statement of Apology by Healthcare Provider

Summary: Provides that a statement or conduct of a health care provider that expresses apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy to a patient or patient’s relative or representative is not admissible into evidence or subject to discovery in any civil action or administrative hearing regarding the health care provider as evidence of liability or as an admission against interest.

Status: Introduced Apr. 4, 2013. Referred to committee on Judiciary; Withdrawn and referred to committee on Health May 13; Public hearing May 29; Passage as amended recommended (7-4) June 20. Passed the Assembly Feb. 18, 2014. Referred to Senate committee on Health and Human Services Feb. 19. Public hearing Mar. 6. Concurrence recommended (3-2);Public hearing held Mar. 6; Concurrence recommended (3-2); Concurred in by Senate (19-14), April 1; Enrolled on April 4;

AB 139

Ott

History

Medical Liability – Informed Consent

Summary: Overturns a negative Wisconsin Supreme Court decision (Jandre v. Wisconsin Injured Patients and Families Compensation Fund) dealing with informed consent in medical liability cases.

Status: Introduced April 5, 2013; Referred to the committee on Judiciary. Public hearing held Apr. 11; Passage as amended recommended (6-2) May 1; Passed the Assembly (65-31) May 8; Referred to Senate committee on Judiciary and Labor May 10; Concurrence as amended recommended (3-2) Oct. 10; Public hearing waived; Am.1 adopted. Passed the Assembly Oct. 15; Signed by the Governor as 2013 Wis. Act 111 on Dec. 14, 2013.

AB 200

Kramer

History

Motor Vehicle Warranties – Lemon Law Reform

Summary: The bill would repeal the double damage provision that encourages attorneys to seek jackpot justice, but keep the obligation that a manufacturer provide a comparable vehicle or refund, whichever remedy the consumer chooses. If the manufacturer fails to provide the vehicle or refund within the specified deadline, a consumer may bring an action to recover for any damages. If he or she prevails, the court may award any pecuniary loss (including the cost of the vehicle), along with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate. The bill makes other changes that also bring Wisconsin law more in line with other states.

Status: Introduced May 13, 2013; Referred to the committee on Judiciary. Passage as amended recommended (8-0) June 6; Passed the Assembly (88-8, paired 2) June 12; Referred to Senate committee on Transportation, Public Safety, and Veterans and Military Affairs; Public hearing held July 18; Concurrence recommended (5-0) Aug. 22; Passed the Senate (32-1) Sept. 17; Signed by the Governor as 2013 Wis. Act 101 on Dec. 13, 2013.

AB 225

Stone

History

Campaign Finance Law

Summary: Makes several changes to the campaign finance laws.

Status: Introduced May 31, 2013; Referred to the committee on Campaigns and Elections. Public hearing held June 4; Passage as amended recommended (8-1) June 10; Passed the Assembly June 12; Referred to Senate committee on Elections and Urban Affairs; Public hearing held Dec. 18, 2013; Failed to concur in pursuant to Senate Joint Resolution 1.

AB 265

Pasch

History

Statute of Limitations for Sexual Contact with a Child

Summary: Removes the time limit for bringing actions for sexual contact with a child and applies this unlimited time period to a broader range of actions. No limit on the time a person has to bring an action for injury resulting from being subject, as a child, to any sexual contact by an adult or by an adult member of the clergy. The bill also revives any cause of action that was barred by the present statute of limitations and allows an injured party to bring that action for his or her injury within two years after the effective date of the billt.

Status: Introduced July 17, 2013; Referred to the committee on Criminal Justice; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 269

Sinicki

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment, unfair honesty testing, or unfair genetic testing to pay compensatory and punitive damages.

Status: Introduced July 30, 2013; Referred to the committee on Judiciary;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 342

Taylor

History

Employment Discrimination

Summary: Provides that employment discrimination because of conviction record includes requesting an applicant to supply information regarding his or her conviction record, or otherwise inquiring into or considering the conviction record of an applicant for employment, before the applicant has been selected for an interview.

Status: Introduced Aug. 27, 2013; Referred to the committee on Labor;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 543

Hebl

History

Campaigns for Supreme Court Justice

Summary: creates a democracy trust fund under which eligible candidates for the office of justice of the supreme court may receive public grants derived from general purpose revenues to finance their campaigns.

Status: Introduced Dec. 9, 2013; Referred to the committee on Campaigns and Elections; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 553

Richards

History

Civil Actions Involving Health Care Providers

Summary: This bill makes several changes to current law regarding contractual agreements between long-term care facilities and their clients, civil actions for negligence in long-term care facilities, punitive damages in civil actions, certain criminal actions against health care providers, and the confidentiality and use of reviews, incident reports, and evaluations of health care providers.

Status: Introduced Dec. 9, 2013; Referred to the committee on Judiciary;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 604

Smith

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment on the basis of military service to pay compensatory and punitive damages.

Status: Introduced Jan. 7, 2014; Referred to the committee on Labor;Refused to withdraw from committee on Labor (36-57), March 20; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 656

Neylon

History

Patent Trolls

Summary:Regulates written communications attempting to enforce or assert rights in connection with a patent or pending patent.

Status:Introduced Jan. 24, 2014; Referred to committee on Jobs, Economy and Mining; Public hearing held Feb. 17; Passage as amended [AA1, AA2] (16-0), Feb. 18; Passed by Assembly with amendments [AA1, AA2], Feb. 20; Referred to Senate committee on Senate Organization; Failed to concur in pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Senate Bill 498.

AB 706

Ott

History

Liability of Parents/Sponsors of Minor Drivers

Summary: Places a cap of $300,000 for parents of minor drivers. Wisconsin is currently one of only 12 states that impose unlimited liability for parents whose minor children are involved in an automobile accident..

Status: Introduced Jan. 31, 2014; Referred to the committee on Judiciary. Public hearing Feb. 6; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

AB 746

Nerison

History

Agricultural Tourism Activities Liability

Summary:Provides immunity from civil liability to an agricultural tourism provider for the death of or injury to a participant in an agricultural tourism activity under certain circumstances.  The bill extends liability protection to the agricultural tourism provider if the participant’s death or injury occurs as a result of a risk inherent in the agricultural tourism activity and the agricultural tourism provider posts and maintains, in a clearly visible location at the entrance to the property or at the location of each agricultural tourism activity, a sign that contains a notice concerning the risk inherent in the agricultural tourism activity.

Status: Introduced Feb. 10, 2014; Referred to the committee on Agriculture. Public hearing Feb. 12; Passed the Assembly Committee on Agriculture (10-6) Feb. 13. Passed the Assembly (85-9) Feb. 20. Referred to Senate committee on Agriculture, Small Business, and Tourism Feb. 24, 2014. Public hearing Mar. 6. Concurrence recommended (9-0);Concurred in by Senate, April 1; Enrolled, April 7;

Senate Bills

Links Summary/Status

SB 13

Grothman

History

Torts and Personal Injury Trusts

Summary: Provides transparency and prevents fraud in lawsuits involving personal injury trusts by creating certain discovery requirements during litigation.

Status: Introduced Feb. 12, 2013; Referred to committee on Judiciary and Labor. Public hearing held Apr. 11; Passage as amended recommended (3-2) Oct. 10; Failed to pass pursuant to Senate Joint Resolution 1. See companion, Assembly Bill 19

SB 19

Grothman

History

Contingent Fees

Summary: Prohibits a state agency from contracting to provide legal services for the state on a contingent fee basis unless the governor makes a written determination that entering into such a contract is cost-effective and in the public interest..

Status: Introduced Feb. 13, 2013; Referred to the committee on Judiciary and Labor. Public hearing held Apr. 11; Public hearing held Apr. 11; Passage as amended recommended (4-1) Oct. 2;Failed to pass pursuant to Senate Joint Resolution, April 8, 2014. See companion, Assembly Bill 27.

SB 22

Farrow

History

Collateral Source

Summary: Allows juries in personal injury cases to see all the evidence when determining the amount owed to compensate the plaintiff for his or her medical expenses.

Status: Introduced Feb. 13, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 137

Grothman

History

Medical Liability – Informed Consent

Summary: Overturns a negative Wisconsin Supreme Court decision (Jandre v. Wisconsin Injured Patients and Families Compensation Fund) dealing with informed consent in medical liability cases.

Status: Introduced April 10, 2013; Referred to the committee on Judiciary and Labor. Public hearing held Apr. 11; Passage as amended recommended (3-2) Oct. 10;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Assembly Bill 139.

SB 143

Hansen

History

Employment Discrimination

Summary: Authorizes the circuit court to order a person who engages in discrimination in employment, unfair honesty testing, or unfair genetic testing to pay compensatory and punitive damages.

Status: Introduced April 17, 2013; Referred to the committee on Judiciary and Labor. Refused to withdraw from committee; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 182

Petrowski

History

Motor Vehicle Warranties – Lemon Law Reform

Summary: The bill would repeal the double damage provision that encourages attorneys to seek jackpot justice, but keep the obligation that a manufacturer provide a comparable vehicle or refund, whichever remedy the consumer chooses. If the manufacturer fails to provide the vehicle or refund within the specified deadline, a consumer may bring an action to recover for any damages. If he or she prevails, the court may award any pecuniary loss (including the cost of the vehicle), along with costs, disbursements and reasonable attorney fees, and any equitable relief the court determines appropriate. The bill makes other changes that also bring Wisconsin law more in line with other states.

Status: Introduced May 16, 2013; Referred to the committee on Transportation, Pubic Safety, and Veterans and Military Affairs; Public hearing held July 18; Passage as amended recommended (5-0) Aug. 22; Available for scheduling;Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014. See companion, Assembly Bill 200.

SB 225

Lassa

History

Statute of Limitations for Sexual Contact with a Child

Summary: Removes the time limit for bringing actions for sexual contact with a child and applies this unlimited time period to a broader range of actions. No limit on the time a person has to bring an action for injury resulting from being subject, as a child, to any sexual contact by an adult or by an adult member of the clergy. The bill also revives any cause of action that was barred by the present statute of limitations and allows an injured party to bring that action for his or her injury within two years after the effective date of the billt.

Status: Introduced July 9, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 233

Taylor

History

Abusive Work Environments – Civil Actions

Summary: Provides an exception to the exclusive remedy of worker’s compensation that permitting an employee who alleges being subjected to an abusive work environment or other unlawful employment practices to bring an action in circuit court.

Status: Introduced July 31, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 460

Harris

History

Loss of Society and Companionship – Medical Malpractice Claims

Summary: Provides that a parent does have the right to recover for loss of society and companionship if the parent’s adult child is injured as the result of medical malpractice (Makes changes to current law, as stated in Estate of Wells v. Mt. Sinai Medical Center). Also provides that an adult child does have the right to recover for loss of society and companionship if the adult child’s parent dies as the result of medical malpractice (Makes changes to current law, as stated in Czapinski v. St. Francis Hospital, Inc.).

Status: Introduced Dec. 20, 2013; Referred to the committee on Judiciary and Labor; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

SB 498

Farrow

History

Patent Trolls

Summary:Regulates written communications attempting to enforce or assert rights in connection with a patent or pending patent.

Status: Introduced Jan. 15, 2014; Referred to the committee on Government Operations, Public Works, and Telecommunications. Public hearing Feb. 6. Passage as amended recommended (7-0) Mar. 6. Passed the Senate Mar. 11. Passed the Assembly Mar. 20; Enrolled March 26;

SB 592

Grothman

History

Liability of Parents/Sponsors of Minor Drivers

Summary: Places a cap of $300,000 for parents of minor drivers. Wisconsin is currently one of only 12 states that impose unlimited liability for parents whose minor children are involved in an automobile accident..

Status: Introduced Feb. 13, 2014; Referred to the committee on Judiciary and Labor. Public hearing Feb. 20. Passage recommended (3-2) Feb. 27. Passed the Senate (17-16) Mar. 12. Referred to Assembly committee on Rules; Failed to pass pursuant to Senate Joint Resolution 1, April 8, 2014.

2014 Election Results

Posted on by Hamilton

National Poll Results

U.S. Senate: 52 Republicans, 43 Democrats, 2 Independents, 3 Open

U.S. House of Representatives: 243 Republicans, 175 Democrats, 17 Open

Wisconsin Governor and Constitutional Offices General Election Results

Note: In a previous version of our results reporting, David Leeper was incorrectly listed as the Democratic candidate for State Treasurer. This has since been corrected.
 

 Wisconsin Congressional General Election Results

Wisconsin Senate General Election Results

Results: 19 Republicans, 14 Democrats

Wisconsin Senate Races to Watch

*Winners in bold

9th Senate District: Martha Laning (D) versus Dan LeMahieu (R)

17th Senate District: Pat Bomhack (D) versus Rep. Howard Marklein (R)

19th Senate District: Roger Roth (R) versus Rep. Penny Bernard Schaber (D)

Wisconsin Assembly General Election Results

Results: 63 Republicans, 36 Democrats

Wisconsin Assembly Races to Watch

*Winners in Bold

Competitive Open Seats

1st Assembly District: Joel Kitchens (R) versus Joe Majeski (D)

51st Assembly District: Dick Cates (D) versus Todd Novak (R)

88th Assembly District: John Macco (R) versus Dan Robinson (D)

Democratic Incumbents with Competitive Races

54th Assembly District: Rep. Gordon Hintz (D) versus Mark Elliott (R)

70th Assembly District: Rep. Amy Sue Vruwink (D) versus Nancy VanderMeer (R)

75th Assembly District: Rep. Stephen Smith (D) versus Romaine Quinn (R)

85th Assembly District: Rep. Mandy Wright (D) versus Dave Heaton (R)

Republican Incumbents with Competitive Races

68th Assembly District: Rep. Kathy Bernier (R) versus Jeff Peck (D)

72nd Assembly District: Rep. Scott Krug (R) versus Dana Duncan (D)

Court Upholds Statutory Damages Limit for UW Physicians

Posted on by Hamilton

On September 24, the Court of Appeals, Dist. IV located in Madison held that the statutory limits of $250,000 on damage awards against state employees, including University of Wisconsin Hospital physicians, was constitutional. The case is Fiez v. Keevil, 2013AP2711 (Sept. 24, 2014).

Background

Defendant Robert Keevil, a physician employed by the University of Wisconsin Medical School, provided care to the plaintiff, Robert Fiez. During trial, the jury found Keevil negligent and awarded damages to Fiez of more than $1 million. The circuit court then applied the statutory cap under Wis. Stat. § 893.82(6), which limits damages for state employees at $250,000.

The plaintiff appealed arguing that the $250,000 limit violated the Wisconsin Constitution’s equal protection clause, Wis. Const. art. I, § 1 .

Court of Appeals Upholds $250,000 Statutory Limit

In a unanimous decision, the Court of Appeals held that the statutory limit was constitutional. The Court rejected the plaintiff’s arguments noting that “it is within the power of the legislature to use a damages cap to preserve public funds by allowing for fiscal planning and avoidance of high judgments.”

Milwaukee Judge Ignores Wisconsin Legislature, Strikes Down Limits for Non-Economic Damages in Medical Malpractice Cases

Posted on by Hamilton

On Friday, October 3, Milwaukee County Judge Jeffrey Conen issued an order and decision in which he struck down Wisconsin’s $750,000 limit for non-economic damages medical malpractice cases. The case is Mayo v. Wisconsin Injured Patients Compensation Fund, et al., 2012CV006272 (Oct. 3, 2014).

Background

The plaintiff, Ascaris Mayo, went to the emergency room suffering from a fever and acute abdominal pain. The physicians (defendants) included a possible infection in their diagnosis, but ultimately treated Mrs. Mayo for uterine fibroids based on her medical history. She was discharged and instructed to visit her gynecologist.

Mrs. Mayo’s illness worsened, and she visited a different emergency room the next day. She was diagnosed with a septic infection caused by Strep A. As a result of the infection, Mrs. Mayo had all four limbs amputated.

Mrs. Mayo and her husband (Mr. Mayo) filed a lawsuit against the physicians and the Wisconsin Patients and Family Compensation Fund,[1] claiming the defendants were negligent in their diagnosis and treatment of Mrs. Mayo.

The jury found that defendants were not medically negligent in their diagnosis and treatment of Mrs. Mayo. However, the jury found that the defendants failed to properly inform Mrs. Mayo about the availability of antibiotics to treat her suspected infection. In addition, the jury found that the defendants’ failure to discuss the possibility of infection or the availability of antibiotics was a cause of Mrs. Mayo’s injuries.

The jury awarded Mrs. Mayo $9 million in economic damages and $15.5 million in noneconomic damages.  The jury also awarded Mr. Mayo $1.5 million in noneconomic damages for loss of society and companionship.

Judge Conen Strikes Down Statutory Limits on Noneconomic Damages

In a surprising decision, Judge Jeffrey Conen ignored the Wisconsin Legislature’s reasonable limit of $750,000 for noneconomic damages and held that the law was unconstitutional as applied to the Mayos.

In 2006, the Wisconsin Legislature enacted the new $750,000 limit for noneconomic damages in medical malpractice cases after the Wisconsin Supreme Court struck down the previous $350,000 limit on noneconomic damages in a highly controversial decision, Ferdon ex rel. Petrucelli v. Wis. Patients Comp. Fund, 2005 WI 125.

Judge Conen held that the statute violated the Mayos’ right to due process and equal protection and thus unconstitutional. Judge Conen limited his decision by holding the statute unconstitutional as it applies only to the plaintiff, as opposed to a facial challenge. Therefore, Judge Conen’s decision does not strike down the statute in all cases.

Case Likely to be Appealed and Overturned

Judge Conen’s decision is an outlier and likely will not be upheld by the court of appeals or the Supreme Court of Wisconsin. The decision likely will be overturned based on another recent court of appeals decision (Fiez v. Keevil, 2013AP2711) upholding the $250,000 limits for damages against state employees as constitutional. For more information about the Fiez decision, please click here.)

 

[1] The Injured Patients and Families Compensation Fund provides payments to injured patients for malpractice claims that exceed a health provider’s primary malpractice coverage.

Wisconsin Supreme Court Hears Case Dealing with Non-Compete Agreements

Posted on by Hamilton

On Wednesday, October 1, the Supreme Court of Wisconsin heard oral argument in a case that involves an important issue to Wisconsin employers who hire employees on an at-will basis and seek to protect themselves with non-competition, confidentiality, and non-solicitation agreements (hereinafter, “Non-Competes” or “Agreements”).

The opinion of a Milwaukee County Circuit Court that is under review invalidated a Wisconsin employer’s Non-Competes with its at-will employees in Wisconsin. The Milwaukee Circuit Court held if an employer seeks to update its Non-Competes with existing at-will employees, it cannot simply make the signing of such agreements a condition of the at-will employees’ continued employment.

Facts
In 2008, Runzheimer Int’l, Ltd. (“Runzheimer”) updated its current Non-Competes to better protect its proprietary information and business model. Each employee presented with the updated Non-Compete was an at-will employee, and was informed that he or she could not continue to work at Runzheimer (and be exposed to Runzheimer’s proprietary information) unless he or she executed the updated Non-Compete. Any employee that executed the updated Non-Compete would receive continued employment and would be allowed to participate in the following years’ employee bonus incentive plan.

David Friedlen, an existing at-will employee at Runzheimer, elected to keep his job and execute the updated Non-Compete. Friedlen not only kept his job for over two years thereafter, but was allowed into the bonus incentive program and earned over $20,000 under it the year after he executed the Agreement. After his employment was terminated, he went to work for a Runzheimer competitor in Massachusetts in violation of the Agreement, and asserted it was unenforceable because he did not receive sufficient consideration for it.

Friedlen argued that because he was an at-will employee, he could have been terminated at any time after he signed the Agreement and, if he had been terminated shortly thereafter, he would not receive “continued” employment or the benefits of the incentive plan paid out the next year.

Trial Court Decision
The Milwaukee County Circuit Court agreed with Friedlen and invalidated Runzheimer’s Non-Competes. It held that because at-will employees could be terminated at any time, offering them continued employment as consideration is illusory. It also held the incentive plan was illusory, because any consideration that was tied to the continued employment would also disappear if the employee was terminated. Thus, although the Wisconsin Supreme Court has held since 1933 that at-will employment is sufficient consideration to support Non-Competes, even though it can be terminated at any time, this circuit court created an exception for existing at-will employees.
After reviewing the case, the Court of Appeals certified the issue to the Supreme Court for resolution.

Supreme Court Oral Argument
While it is almost impossible to discern how the Supreme Court will decide a case based solely on oral argument, it can provide clues as to how the individual Justices view the case.

Based on the line of questioning, it appears that the decision may come down to the typical judicial conservative and liberal blocs on the Court. For example, two the conservative Justices, Michael Gableman and Annette Zielger, did not appear to accept the arguments for counsel representing the employee based on their questions and direct statements.

Meanwhile, Chief Justice Shirley Abrahamson’s line of questioning suggested that she was sympathetic to the employee’s situation and would require some form of consideration beyond promised continued employment when requiring an existing employee to sign a restrictive covenant, or non-compete.

WCJC and WMC File Amicus Curiae Brief
The Wisconsin Civil Justice Council and Wisconsin Manufacturers & Commerce filed an amicus curiae brief in the case arguing that if the Milwaukee County Circuit Court’s ruling is not overturned, it will have a broad and detrimental impact on Wisconsin employers’ ability to protect their proprietary processes and information. WCJC and WMC also assert that Wisconsin courts frequently alter the law of Non-Competes, rendering previously-enforceable agreements unenforceable and necessitating that employers update them. Employers generally do so by requiring existing, at-will employees to sign them as a condition of further employment. Under the existing Milwaukee County Circuit Court ruling, employers will be required to offer consideration such as upfront cash payments to their entire at-will workforce if they want to do nothing more than alter their Non-Competes to account for changes in their business or comply with existing law.

The case is Runzheimer Int’l, Ltd. v. Friedlen, 2013AP1392. A decision by the Supreme Court is expected before the end of its term in July 2015.