Category: Court Watch

Wisconsin Courts Respond to COVID-19

Posted on by Hamilton

As Wisconsin government and the public struggle with the COVID-19 pandemic, Wisconsin courts remain operational but with reduced calendaring.

  • Subject to certain exceptions, all proceedings in Wisconsin courts are to be conducted via remote audio-video technology if practicable. (Supreme Court order)
  • Wisconsin Supreme Court March 18, March 30, and April 1 oral arguments cancelled. (More on oral arguments)
  • State courts administrative offices closed until at least April 3. (March 17 press release)
  • Some appellate filing deadlines extended and other filing procedures amended.  (Supreme Court order, extended order)
  • Nonemergency motions to the Court of Appeals and Supreme Court are discouraged through April 3. (Supreme Court order)
  • Many individual circuit courts have issued emergency orders related to COVID-19. (See COVID-19 tab at https://www.wicourts.gov/.)
  • The Supreme Court has also temporarily increased the number of credits from on-demand programs that lawyers may use to satisfy CLE requirements.
  • Civil and criminal jury trials are suspended until May 22.
  • The Supreme Court has postponed bar admissions ceremonies through May and instituted temporary procedures for admission to the bar.
  • The Supreme Court has established a temporary rule for the remote administration of oaths at depositions via remote audio-visual equipment.
  • The Supreme Court will hold a public hearing on May 1 (with written comments open until April 24) and its interim rule to temporarily suspend statutory deadlines for civil jury trials due to the pandemic.

 

 

Wisconsin Civil Justice Council Issues 2019 Guide to the Wisconsin Supreme Court and Judicial Evaluation

Posted on by Hamilton

WCJC has released its 2019 Guide to the Wisconsin Supreme Court and Judicial Evaluation, which reviews the most important cases decided by the Supreme Court of Wisconsin affecting the business community. The 2019 Judicial Evaluation covers the 2018-19 Supreme Court term.

The Judicial Evaluation scores the justices based on the percentage of the reviewed cases in which their position aligned with WCJC’s position. Based on the comprehensive review of decisions affecting the business community, Chief Justice Patience Roggensack and Justice Annette Ziegler scored the highest at 80 percent. Justice Rebecca Bradley scored 79 percent, and Justice Daniel Kelly came in at 76 percent. New to the court this term, Justice Rebecca Dallet scored 59 percent. Justice Walsh Bradley scored 30 percent. In her last term before retiring from the court this year, Justice Shirley Abrahamson scored 28 percent.

“The judicial evaluation provides analyses of the most important decisions affecting Wisconsin’s business community in the 2018-19 term,” said Bill G. Smith, WCJC President and State Director of the National Federation of Independent Business. “Businesses all over the state should read this important document and recognize how the judicial branch affects them and their employees,” added Smith.

The 2019 Judicial Evaluation provides a discussion of the facts and the court’s holding in each of the decisions, including the dissenting opinion(s). The guide then lists how each justice decided the case, along with WCJC’s position on the court’s decision.

“The decisions handed down by the court have a direct effect not just on the parties involved in each case, but on the entire business community, as the court establishes important precedent that is used in future cases,” added Scott Manley, WCJC Vice President and Executive Vice President of Government Relations for Wisconsin Manufacturers & Commerce. “The evaluation is an important tool to inform the public about how these cases are decided by the Supreme Court.”

This is the fourth judicial evaluation issued by WCJC since 2011.

Legislature Files Lawsuit Against AG to Enforce Extraordinary Session Laws

Posted on by Hamilton

Republican legislative leadership have filed a petition for original action in the Wisconsin Supreme Court, seeking to enforce sections of the 2018 extraordinary legislation that provide legislative oversight to attorney general settlements.

The Legislature’s petition and memo in support state that Attorney General Josh Kaul reads the 2017 Act 369 settlement review provisions as not applicable to settlements involving pre-lawsuit negotiations and decisions not to file timely notices of appeal, unless the decisions result from settlement agreements. The petition asks the Supreme Court to determine whether, under Act 369, the attorney general must get approval from the Joint Finance Committee and deposit any settlement funds into the general fund for these types of cases. 

The lawsuit comes after the Supreme Court affirmed in League of Women Voters v. Evers the constitutionality of the legislature meeting in extraordinary session to pass the legislation in December 2018. Another pending case at the Supreme Court, SEIU v. Vos, will decide whether the legislation itself is constitutional. In June, the Supreme Court reinstated the laws after a Dane County Circuit Court had issued a temporary injunction.

Read more about litigation related to the 2018 extraordinary session.

 

Jury Issues $6 Million Verdict To Plaintiffs in Lead Paint Case

Posted on by Hamilton

On May 31, a federal jury in the Eastern District of Wisconsin issued a $6 million verdict to the plaintiffs in a trial relitigating whether plaintiffs can hold companies liable for marketing and manufacturing lead paint before it became illegal in 1978. The case is the first to use Wisconsin’s unique risk contribution theory of liability to allege defendant manufacturers caused the plaintiffs’ injuries, despite their inability to specifically link defendants’ products to their injuries. In this latest case, Burton v. American Cyanamid et al., defendants presented specific evidence that they did not manufacture the paint used in plaintiffs’ homes; however, three out of four defendants were still found liable under the risk contribution theory.

In 2005, the Wisconsin Supreme Court ruled in favor of plaintiffs using risk contribution theory in a similar case (Thomas v. Mallet). The decision allowed plaintiffs to hold manufacturers liable for contributing to the overall risk of lead poisoning, whether or not their paint specifically caused the injuries in question. The burden is placed on lead paint manufacturers to prove they did not produce or market lead paint during the relevant time period or in the geographical market.

Only one of four defendants in Burton v. American Cyanamid was able to prove it was not negligent in producing or marketing lead paint in Milwaukee during the relevant time. The remaining three defendants were found liable for negligently producing and marketing lead paint without adequate warning labels, causing the plaintiffs’ injuries. Accordingly, liability for the plaintiffs’ injuries will be distributed among the remaining three defendants based on their share of the market at the relevant time. The jury awarded $2 million per plaintiff, for a total of $6 million. The jury will determine market share at a subsequent trial.

The defendants plan to appeal the verdict.

More on lead paint cases in Wisconsin.

Extraordinary Session Litigation Update

Posted on by Hamilton

Several ongoing cases seeking to void the 2018 extraordinary session legislation are moving through Wisconsin and federal courts. This article provides background on each of the cases and updates on where each of the cases are in the legal process.

League of Women Voters v. Evers

Status

6/21/19: In a 4-3 decision the Wisconsin Supreme Court ruled the Legislature’s 2018 extraordinary session was constitutional, upholding 2017 Acts 368, 369, and 370 and the confirmation of 82 appointments.  

5/15/19: The Wisconsin Supreme Court held oral arguments in League of Women Voters v. Evers. 

4/30/19: In a 4-3 decision, the Wisconsin Supreme Court restored the 82 appointments that Gov. Tony Evers had rescinded under the initial circuit court injunction.

4/15/19: The Wisconsin Supreme Court accepted the League of Women Voters’s petition to bypass the Court of Appeals. The Supreme Court will hold oral arguments on May 15.

4/15/19: Gov. Tony Evers filed a brief in opposition to the Legislature’s motion for emergency temporary relief.

4/10/19: The Legislature has filed a motion asking the Wisconsin Supreme Court to take original jurisdiction over the case or, alternatively, to immediately reinstate the rescinded appointments.

4/9/19: The appeals court denied the Legislature’s motion to enforce the stay, arguing Gov. Tony Evers’s withdrawal of the appointments was valid because the governor had the authority to rescind the appointments while the temporary injunction was in place.

4/3/19: The plaintiff League of Women Voters petitioned the Wisconsin Supreme Court to bypass the Court of Appeals, arguing the case presents novel questions of state constitutional law, and only the Supreme Court can provide a definitive resolution.

4/1/19: Due to the disagreement between Gov. Tony Evers’s administration and the defendant legislature as to whether the appointees who had been rescinded are now reinstated, the legislature filed an expedited motion to enforce the court of appeals stay after the administration prevented appointees from returning to work the day after the court issued the stay.

3/27/19: The Court of Appeals District III has issued a stay of the temporary injunction issued by a Dane County circuit court. The Dane County judge had ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety. The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Background

The plaintiffs argue that the extraordinary session was not convened in accordance with the Wisconsin Constitution, which authorizes the legislature to meet only as provided by law or when convened by the governor (Wis. Const. Art. IV, § 11).

The Legislature intervened as a defendant and argues that convening an extraordinary session does not violate the Wisconsin Constitution because the rules for the 2017-18 session prescribed in 2017 Senate Joint Resolution 1 specifically state that any days not reserved for scheduled floorperiods are available for the legislature to convene an extraordinary session. Therefore, the Legislature met as provided by law under the Constitution and Wis. Stat. § 13.02(3).

SEIU v. Vos

Status

10/21/19: The Wisconsin Supreme Court held oral arguments in SIEU v. Vos.

6/11/19: The Wisconsin Supreme Court granted the defendant Legislature’s motion for temporary relief pending appeal by staying the temporary injunction issued by the Dane County Circuit Court. However, the Supreme Court left in place the injunction on Act 369 provisions that would have rescinded improperly promulgated guidance documents on July 1, 2019. Additionally, the Supreme Court stayed proceedings on the case in the lower court, cancelling the trial on guidance document provisions of Act 369 set to begin in Dane County on June 12. Read more. 

4/19/19: The Wisconsin Supreme Court assumed jurisdiction of this case, several weeks after a second Dane County judge issued a temporary injunction preventing enforcement of some extraordinary session legislation provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant legislature had also appealed this injunction, but the court of appeals had not provided a ruling before the Supreme Court assumed the case.

Whereas the League of Women Voters order enjoined the extraordinary session laws in their entirety, the SEIU circuit court order found the plaintiffs did not establish sufficiently that a court would find other provisions unconstitutional. Specifically, the SEIU circuit court judge left in place provisions

  • Allowing the legislature to intervene and use outside counsel in certain cases.
  • Allowing the Wisconsin Economic Development Corporation to designate an unlimited number of enterprise zones, but requiring approval of the Joint Finance Committee on any new zone.
  • Requiring legislative oversight of agencies applying for federal waivers and seeking to reallocate funds.

Background

The plaintiffs, Service Employees International Union, Wisconsin Federation of Nurses and Health Professionals, American Federation of Teachers-Wisconsin, and Milwaukee Area Service and Hospitality Workers, allege that the extraordinary session laws are an unconstitutional violation of the separation of powers doctrine.

According to the plaintiffs, Article V of the Wisconsin Constitution gives the governor the exclusive power to execute laws. Furthermore, Article V guarantees that one branch may not interfere with another branch’s powers. The plaintiffs allege that extraordinary session provisions, including increased legislative oversight of rulemaking, attorney general lawsuits, and agency appropriations, interfere with the governor’s and attorney general’s constitutional powers. Furthermore, committee oversight without opportunity for a governor veto violates constitutional separation of powers.

The defendant legislature argues that the Wisconsin Constitution explicitly allows the legislature to prescribe the powers of the attorney general. Furthermore, Wisconsin case law has interpreted the Constitution as a fluid rather than rigid political design of separate branches of government.

Democratic Party of Wisconsin v. Vos

Status

The Democratic Party of Wisconsin (DPW) has filed a complaint in the U.S. District Court Western District of Wisconsin seeking to declare the extraordinary session legislation in violation of the U.S. Constitution. Parties are continuing to brief the case, and oral arguments will be held on April 26.

Background

The complaint alleges that the legislation violates the plaintiffs’ First and Fourteenth amendment rights, as well as the Guarantee Clause.

The U.S. Constitution Art. 4 § 4 guarantees states a republican form of government. DPW’s complaint alleges that the Republican legislature violated the Guarantee Clause by removing powers from the incoming Democratic administration to the legislature.

DPW also claims that the extraordinary session violated the plaintiffs’ First Amendment rights to free association and free speech because the state legislature retaliated against Democratic candidates based on their political viewpoints by limiting their ability to enact their policy preferences via the newly elected Democratic Gov. Tony Evers and Attorney General Josh Kaul.

Finally, DPW argues the legislation violates the Fourteenth Amendment’s Equal Protection Clause because it dilutes the power of Democratic votes.

Appeals Court Issues Stay of Injunction on Extraordinary Session Laws

Posted on by Hamilton

The Court of Appeals District III has issued a stay of the temporary injunction in League of Women Voters v. Evers, one of the cases challenging the constitutionality of the 2018 extraordinary session laws. The stay comes after a Dane County circuit court judge ordered the injunction of 82 appointments confirmed in the extraordinary session and the extraordinary session laws in their entirety.

The appeals court order reasons that the Dane County circuit court failed to evaluate the irreparable harm that could result from enjoining the legislation if it is later found valid. The order stays the temporary injunction and establishes an expedited appeal process with all briefs due by the end of April.

Read more about the League of Women Voters case.

Despite the appeals court order reinstating the extraordinary session laws in League of Women Voters, some parts of the extraordinary session laws are still unenforceable after a second Dane County judge issued a temporary injunction in a separate case, SEIU v. Vos. The SEIU injunction prevents enforcement of provisions requiring legislative approval for the attorney general to discontinue or settle cases, requiring transparency for agency guidance documents, and allowing for more legislative oversight of agency rulemaking, while leaving in place other portions of the laws. The defendant Legislature also plans to appeal this injunction, but there has yet to be an appeals court ruling on a stay.

Read more about the SEIU case.

Commercial Docket Pilot Project Expanding

Posted on by Hamilton

The Wisconsin Court System announced this week the expansion of the Commercial Docket Pilot Project beginning April 1. Under the expansion, parties filing commercial cases in any Wisconsin county will now be able to transfer their cases to the Commercial Docket.

Wisconsin’s Commercial Docket (a.k.a. Business Court) Pilot Project began in July 2017 in Waukesha County and the Eighth Judicial Administrative District. The Commercial Docket allows parties filing large claim and commercial cases to transfer their cases to specific judges with business experience for expedited resolution.

In her 2018 State of the Judiciary Address, Wisconsin Supreme Court Chief Justice Roggensack highlighted the pilot project. According to Chief Justice Roggensack, the majority of cases have been filed as prohibited business activity cases, and other cases include internal business organizations, business sale consolidations, franchise related claims, and sales securities. Chief Justice Roggensack said while these cases typically take about 36 months to resolve, the commercial docket has typically resolved cases in less than one year.

 

2018 State of the Judiciary Address Highlights Business Court Pilot

Posted on by Hamilton

On Oct. 31, Chief Justice Patience Roggensack delivered the 2018 State of the Judiciary Address. Among other topics, Chief Justice Roggensack’s remarks highlighted Wisconsin’s Commercial Docket (a.k.a. Business Court) Pilot Project that began in July 2017.

According to Chief Justice Roggensack, the commercial docket has handled 35 cases as of September, 14 of which have been resolved. The majority of cases have been filed as prohibited business activity cases, and other cases include internal business organizations, business sale consolidations, franchise related claims, and sales securities. Chief Justice Roggensack said while these cases typically take about 36 months to resolve, the commercial docket has resolved the 14 completed cases in less than one year.

The Chief Justice noted positive anecdotal feedback of the project and said the Commercial Docket Pilot Project judges are recommending expanding case types handled by the business court to include receiverships in excess of $250,000 and enforcement of arbitration awards.

Chief Justice Roggensack acknowledged that one challenge of the pilot project has been getting attorneys to file their cases in the commercial docket, rather than waiting for the clerk of courts or a judge to transfer the case.

In her address, Chief Justice Roggensack also discussed eFiling, research and justice statistics, drug treatment courts, and judicial salaries.

Read the full address.

3rd District Court of Appeals Decision: Patrick Humfeld v. State Farm Fire and Casualty Co. (Recreational Immunity)

Posted on by Hamilton

The Court of Appeals District III held in this case that, under Wisconsin’s recreational immunity statute (Wis. Stat. § 895.52), a property owner is not liable for a hunter shot on his land.

John Marsh allowed plaintiff Patrick Humfeld – and several other individuals – to hunt on his property. Humfeld was shot by another hunter while both were hunting on Marsh’s property. Humfeld subsequently filed a lawsuit against Marsh and his insurer, State Farm, claiming negligence because Marsh did not properly monitor the hunters on his property. State Farm argued Marsh was not liable under recreational immunity.

Humfeld argued the social guest and profit exceptions made the recreational immunity inapplicable in this case. The social guest exception says that owners are liable for injuries to guests expressly invited for a specific occasion. The court held that the social guest exception did not apply here because Marsh gave Humfeld general permission to hunt on his property at any time. Marsh allowed several different people to hunt on his property, so he falls within the intent of the recreational immunity statute: to open private land to the public.

The profit exception says that owners are liable for injuries if they collect payments from those using their property for recreational activity. Although Marsh leased part of his land for hunting, the court held the profit exception did not apply in this case because Humfeld did not pay Marsh, nor was he hunting on the leased portion of the property.

Humfeld plans to appeal to the Supreme Court.

Supreme Court Upholds $750,000 Limit on Noneconomic Damages in Med Malpractice Cases

Posted on by Hamilton

The Wisconsin Supreme Court in a 5-2 decision (Mayo v. Wisconsin Injured Patients and Families Compensation Fund) has upheld Wisconsin’s $750,000 limit on noneconomic damages in medical malpractice cases. The Court determined that the cap is constitutional because the legislature had a rational basis in enacting the cap statute to ensure affordable and accessible health care in Wisconsin.

Notably, neither the statutes nor the Court’s decision preclude plaintiffs from being compensated for their injuries. Current law only limits the amount of noneconomic damages, i.e., pain and suffering, a plaintiff may receive at $750,000. There is no limit on the amount of damages a plaintiff can receive for his or her physical injuries.

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.

Ruling the cap constitutional, the Supreme Court remanded the case to circuit court to impose the $750,000 cap on the plaintiffs’ noneconomic damages.

The decision also clarified the definition and application of the “rational basis test” for courts considering reversal of legislative enactments. Courts use the rational basis test to determine the constitutionality of a statute based on whether the statute appears to have a rational basis in achieving the legislature’s objective in writing it. Since Ferdon v. Wis. Patient Comp. Fund (holding that the previous $350,000 cap was facially unconstitutional), the courts have been unclear regarding the “rational basis” test as it relates to an equal protection claim. The Mayo decision reversed new scrutiny level created by Ferdon called “rational basis with teeth.”